Earl Steven Floyd v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia
EARL STEVEN FLOYD
MEMORANDUM OPINION * BY
v. Record No. 1872-02-2 JUDGE ROBERT P. FRANK
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge Designate
Craig S. Cooley for appellant.
Leah A. Darron, Assistant Commonwealth
Attorney (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Earl Steven Floyd (appellant) was convicted in a bench trial
of manufacturing marijuana, not for his own use, in violation of
Code § 18.2-248.1(c). On appeal, he contends the trial court
erred in finding the evidence was sufficient to prove he was
growing the marijuana "not for personal use." For the reasons
stated, we affirm his conviction.
BACKGROUND
On October 25, 2001, Chesterfield Narcotics Detective Robert
Cerullo and Virginia State Police First Sergeant John Ruffin
executed a search warrant at appellant's home in Chesterfield
County. They discovered a "nursery room" inside appellant's
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
bedroom closet, containing grow-lights and several small marijuana
plants, "just in the initial stage of growing." The officers also
discovered a hidden compartment in the bedroom wall, containing
two fire safes, and another hidden compartment in the bedroom
floor under the carpet. The police also saw several "VCR type"
recording devices that were hooked to video cameras that surveyed
the exterior of the residence.
In the bathroom off the bedroom, the officers found "monitors
for exterior surveillance equipment." They determined that three
cameras were focused on the exterior of the house. The police did
not see an interior camera, but they did observe a motion sensor.
In this same area, the police seized nine one-gallon size
baggies, each containing a different quantity of marijuana. Each
baggy also contained a piece of paper with a number/letter code on
it. The police also found a can containing many "little ends" of
marijuana cigarettes, which First Sergeant Ruffin indicated could
be consistent with "heavy, heavy use." The police found
forty-five packages of rolling papers and a smoking device, but
did not recover any scales, cell phones, guns, or financial
records indicating sales. Some ammunition was recovered.
The police also discovered a large, hidden, underground room,
accessed through a closet in the den, which served as a "main
growing room." The room contained tanks of nitrous oxide, halogen
grow-lights with electric timers, dirt, fertilizer, and an
automated watering system. First Sergeant Ruffin testified this
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growing operation was "very sophisticated, very well thought out."
Ruffin valued the equipment at approximately $4,972, 1 based on
prices in catalogs that he found in appellant's home.
In this grow room, the officers recovered approximately 260
marijuana plants in various stages of development. Fifteen of the
plants were mature. Several of these mature plants had been used
for "cloning," a process used to produce higher-quality marijuana.
Written information attached to these larger plants corresponded
to the code on the paper found in the nine baggies of marijuana,
apparently indicating which plant had produced that marijuana.
Overall, 3.4 pounds of marijuana were recovered in the house.
First Sergeant Ruffin testified that, if allowed to proceed
to harvest, each plant in the grow room would yield three ounces
of processed, "bud" marijuana. 2 By his calculations, a person
would have to smoke seven marijuana cigarettes each hour,
twenty-four hours a day, seven days a week for a year in order to
consume the amount of marijuana appellant's grow room would
produce. Both Detective Cerullo and First Sergeant Ruffin
testified from their experience and training that the amount of
1
According to the officer, this estimate did not include
several items found in the room, such as "CO2 tanks, refills for
CO2, plant food, nutrients bucket, soil, and fertilizer."
2
The officer also testified, "The federal government states
that fifty plants or more that [sic] are seized, you can get a
kilo of processed marijuana per plant. The State figures it as
one pound per plant." He acknowledged that his figure went "a
step further on the defense behalf."
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marijuana seized and its packaging were inconsistent with personal
use.
The appellant was not present when the police began the
search, but returned home while the police were executing the
warrant. He told the officers he grew the marijuana for his
personal use and that he smoked two to three marijuana cigarettes
per hour every day. He stated he did not sell marijuana, but used
it as medical treatment for his eye condition.
First Sergeant Ruffin testified that the 3.4 pounds of
marijuana recovered would last four to six months at appellant's
stated use. However, he explained that THC, the psychoactive drug
in marijuana, has a limited "shelf life." Ruffin testified that
marijuana must be used fairly quickly, as it loses fifty percent
of its THC content within sixty days of harvest, and another fifty
percent within six months of harvest. After twenty-four months,
only a trace of THC remains.
Dana Lester, appellant's on-and-off girlfriend for twelve
years, testified she had lived with appellant "off and on for a
couple of years." She met him in 1990, and he was selling
marijuana at that time. She learned in 1994 that he grew
marijuana, and she assisted him with "cloning." She knew the
price for his marijuana, explaining it was more expensive than
other street marijuana because "it was high quality." She last
saw appellant sell marijuana in January 2001. Appellant had
"never been employed," according to Lester.
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Lester testified that, not only did she buy marijuana from
appellant, but she also observed "lots and lots" of sales and
"lots and lots" of money. Appellant told Lester he would purchase
assets and title vehicles in his mother's name. First Sergeant
Ruffin testified drug dealers will hide assets by putting property
in other people's names.
Lester was a five-time convicted felon. At the time of
trial, Lester had been jailed since April 2001. She stated she
had volunteered to testify against appellant, but admitted that an
offense carrying a mandatory, minimum five-year term was nolle
prossed by the Hanover Commonwealth's Attorney in November 2001.
Another charge was dismissed before she spoke with the police
about appellant. Lester provided the police with the names of
several of appellant's customers, but these people did not
testify.
An optometrist testified he had treated appellant for
"end-stage" glaucoma, caused by a traumatic injury to appellant's
face. This illness is painful, and marijuana is a legitimate
treatment to ease the pain.
Appellant, a convicted felon, admitted growing marijuana for
his personal use, to treat his glaucoma. He further admitted
smoking two to three marijuana cigarettes per hour or about "20 or
so a day." He denied selling marijuana and denied Lester had
assisted him. He explained the surveillance equipment was to
monitor his mother, who had Alzheimer's and would walk off
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aimlessly. Appellant indicated his only source of income is $300
a month in spousal support and $600 a month in disability
compensation.
On cross-examination, appellant conceded he had purchased
$17,000 worth of gold coins in 2000. Forms completed by the coin
dealers indicated appellant had represented himself as a cameraman
or a government employee with an annual income of $25,000 to
$50,000. Appellant denied providing that information. He
explained that he bought the coins to resell at a profit. He
purchased the coins by wire transfers and with his credit card.
Appellant also admitted that in 1999, he purchased a used car
for a friend, Carolyn Kimbrough, for $15,000 from a rental agency
in North Carolina. He admitted he did not give Kimbrough the
title to the car for six months. He explained that Kimbrough had
not given him enough money to purchase the car, so appellant put
$5,000 of the purchase price on his credit card. When she repaid
him, he alleged, he transferred title to her.
ANALYSIS
Appellant admits he manufactured the marijuana. However, he
maintains the evidence was insufficient to prove the marijuana was
"not for [his] personal use." The Commonwealth does not contest
that appellant, in part, grew the marijuana for his personal use,
but maintains the quantity grown was far in excess of the amount
appellant could use for his personal, medical use.
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When considering sufficiency issues, "we review the evidence
in the light most favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom." Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). In
such cases, "'it is our duty to look to that evidence which tends
to support the verdict and to permit the verdict to stand unless
plainly wrong.'" Johnson v. Commonwealth, 35 Va. App. 134, 139,
543 S.E.2d 605, 607 (citing Snyder v. Commonwealth, 202 Va. 1009,
1016, 121 S.E.2d 452, 457 (1961)), aff'd, 37 Va. App. 187, 555
S.E.2d 419 (2001) (en banc).
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). "The trier of fact is not required to accept a
party's evidence in its entirety, but is free to believe and
disbelieve in part or in whole the testimony of any witness.
Yellardy v. Commonwealth, 38 Va. App. 19, 22, 561 S.E.2d 739, 741
(2002) (citation omitted).
Circumstantial evidence is sufficient to sustain a finding
of guilt if it excludes those reasonable hypotheses of innocence
that "flow from the evidence." Hamilton v. Commonwealth, 16
Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether a
hypothesis of innocence is reasonable is a finding of fact,
binding on appeal unless plainly wrong. See Glasco v.
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Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998),
aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).
Here, appellant claims all the marijuana was produced for
his personal use. Accepting appellant's testimony that he
needed the marijuana to treat his glaucoma, however, did not
preclude the trial court from finding that he also grew the
marijuana for sale. The trial court was not constrained to
accept the entirety of appellant's explanation for the drugs
found in his home. See Yellardy, 38 Va. App. at 22, 561 S.E.2d
at 741.
Numerous factors can be examined to determine whether the
evidence proves a drug was manufactured for personal use and/or
for sale. See Monroe v. Commonwealth, 4 Va. App. 154, 156-57,
355 S.E.2d 336, 337 (1987). In this case, both officers
testified that the quantity of marijuana seized was inconsistent
with personal use. First Sergeant Ruffin explained that the
plants found in appellant's grow room would produce more
marijuana than appellant could use in a year, even if he smoked
the drug twenty-four hours a day.
Additionally, appellant's marijuana growing operation was
characterized as "sophisticated." The surveillance equipment
and monitoring of the exterior of appellant's home suggest a
distribution operation, i.e., monitoring activity outside the
house to protect his business. The cost of the operation,
including the building of the grow room and the apparatus
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involved in his operation, suggest a monetary return on this
investment was necessary, especially given appellant's limited
income.
While on an income of only $900 a month, appellant
purchased gold coins for $17,000 and a used car for $15,000.
His purchase order for the coins recited an income of $25,000 to
$50,000. While appellant claims he made these purchases using a
credit card, the documents from the organization that sold the
gold coins indicate most of the purchases were through wire
transfers of funds.
Although not specifically mentioned in the trial court's
findings, Lester's testimony also supported the finding of
guilt. She testified appellant sold marijuana as late as
January 2001. She knew the price at which he sold the drug, and
she was familiar with the procedures he used to produce the
marijuana. Although she was a convicted felon, and perhaps she
would receive some favorable treatment in her own cases because
of her willingness to testify, her testimony was not inherently
incredible. See Yates v. Commonwealth, 4 Va. App. 140, 144, 355
S.E.2d 14, 16 (1987) (finding testimony from a felon, pursuant
to a plea agreement, is not inherently incredible).
Clearly the trial court rejected appellant's explanation of
these events. In finding the evidence sufficient to convict,
the trial court noted the volume of production, the
sophistication of the operation, the security system, and the
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underground room. The record supports the trial court's
findings. We, therefore, affirm the judgment of the trial
court.
Affirmed.
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