Kelly Marie Logan v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
KELLY MARIE LOGAN
OPINION BY
v. 	Record No. 2216-03-1 	JUDGE ROBERT P. FRANK
AUGUST 3, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SUSSEX COUNTY
Robert G. O’Hara, Jr., Judge
Steven Brent Novey (Tomko & Novey, on brief), for appellant.
(Jerry W. Kilgore, Attorney General; Leah A. Darron, Assistant
Attorney General, on brief), for appellee. Appellee submitting on
brief.
Kelly Marie Logan (appellant) was convicted in a bench trial of delivering marijuana to a
prisoner, in violation of Code § 18.2-474.1. She argues on appeal that the trial court erred in
denying her motion to dismiss the charge on double jeopardy grounds. Finding no violation of
double jeopardy principles, we affirm the conviction of delivering marijuana to a prisoner.
On December 22, 2002, appellant confessed to delivering marijuana to a prisoner in the
Sussex prison. She was charged with a misdemeanor of possessing marijuana, in violation of Code
§ 18.2-250.1, and with a felony of delivering marijuana to a prisoner, in violation of Code
§ 18.2-474.1. On March 6, 2003, the General District Court for Sussex County accepted appellant’s
guilty plea to the misdemeanor and her waiver of a preliminary hearing on the felony. The grand
jury certified the felony conviction on March 11, 2003. Appellant did not appeal the misdemeanor.
Appellant filed a motion to dismiss the felony charge. She argued that double jeopardy
principles precluded conviction of the felony delivering charge because she was previously

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convicted of the misdemeanor possession charge based on the same evidence and the possession
charge is a lesser-included offense of the felony offense. The trial court heard the evidence on the
offense, convicted appellant of the felony, and then denied the motion to dismiss. The court opined
that Blockburger v. United States, 284 U.S. 299 (1932), did not apply to this case.
On appeal, appellant argues possession of marijuana is a lesser-included offense of Code
§ 18.2-474.1, delivering marijuana to a prisoner. She asks that the felony offense, which is the
only offense before us on appeal, be reversed as that conviction violates double jeopardy
protections against being punished twice for the same act. We find that possession of marijuana
is not a lesser-included offense of Code § 18.2-474.1.
Blockburger held, in part:
The applicable rule is that where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which the
other does not. Gavieres v. United States, 220 U.S. 338, 342
[(1911)], and authorities cited. In that case this court quoted from
and adopted the language of the Supreme Court of Massachusetts
in Morey v. Commonwealth, 108 Mass. 433 [(1871)]: “A single
act may be an offense against two statutes; and if each statute
requires proof of an additional fact which the other does not, an
acquittal or conviction under either statute does not exempt the
defendant from prosecution and punishment under the other.”
Compare Albrecht v. United States, 273 U.S. 1, 11-12 [(1927)],
and cases there cited.
Id. at 304. In applying this test, the courts examine the offenses as codified, without reference to
the particular facts of the case. Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732,
734 (2001). Therefore, in order to evaluate appellant’s claim, we must consider the elements of
the crimes involved.
Code § 18.2-474.1 provides:
any person who shall willfully in any manner deliver, attempt to
deliver, or conspire with another to deliver to any prisoner
confined under authority of the Commonwealth of Virginia, or of

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any political subdivision thereof, any drug which is a controlled
substance regulated by the Drug Control Act in Chapter 34 of Title
54.1 or marijuana, shall be guilty of a Class 5 felony.
Appellant argues this statute is the equivalent of Code § 18.2-248,1 which criminalizes
distribution of controlled substances. She contends, as possession2 is a lesser-included offense of
distribution of a controlled substance, according to Austin v. Commonwealth, 33 Va. App. 124,
531 S.E.2d 637 (2000), then possession of marijuana is a lesser-included offense of delivering
marijuana to a prisoner. However, her analysis ignores a substantial difference between the
distribution and delivering statutes.
In order to manufacture, sell, give, distribute, or possess a controlled drug, which is an
element of the crime of distribution under Code § 18.2-248, “necessarily encompasses proof of
the possession of that same controlled substance.” Id. at 129, 531 S.E.2d at 639. In proving a
defendant manufactured, sold, gave, distributed, or possessed the controlled substance, the
prosecution must prove that defendant possessed the substance. The same analysis does not
apply to Code § 18.2-474.1.
The crime of delivering a controlled substance to a prisoner does not require proof of
possession. Under Code § 18.2-474.1, while a defendant is guilty if she actually delivers drugs
in her possession to a prisoner, a defendant is also guilty of delivery to a prisoner if the evidence
proves an attempt to deliver drugs or a conspiracy to deliver drugs. In such cases, the
Commonwealth need not prove actual possession of the drugs, only that the defendant attempted
or conspired to deliver drugs to the prisoner. Neither attempt nor conspiracy to deliver the
1 Code § 18.2-248 criminalizes, in part, the “[m]anufacturing, selling, giving, distributing
or possessing” of a controlled substance “with intent to manufacture, sell, give or distribute a
controlled substance.”
2 Code § 18.2-250.1 states, “It is unlawful for any person knowingly or intentionally to
possess marijuana . . . .”

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marijuana requires proof that the defendant actually possessed marijuana. See Lewis v.
Commonwealth, 15 Va. App. 337, 341, 423 S.E.2d 371, 374 (1992) (“[A]ctual possession of the
contraband is not required to establish the offense” of attempt to deliver marijuana to a prisoner
in violation of Code § 18.2-474.1.); Fortune v. Commonwealth, 12 Va. App. 643, 647, 406
S.E.2d 47, 48-49 (1991) (noting conspiracy has two elements: (1) the actus reus, an agreement
between people, and (2) the mens rea, the intent to achieve an unlawful act). As a defendant can
take sufficient acts toward the conspired or attempted delivery without actually possessing
marijuana, possession of marijuana is not a lesser-included offense of delivering under the
Blockburger test.
We affirm the felony conviction.
Affirmed.

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Benton, J., concurring.
Kelly Logan delivered marijuana to a prisoner and was convicted of the misdemeanor of
possessing marijuana in violation of Code § 18.2-250.1. At a later trial, she was convicted of the
felony of delivering that same marijuana to a prisoner in violation of Code § 18.2-474.1. Logan
contends that her conviction for possession of marijuana is a lesser-included offense of her
second conviction for delivering marijuana to a prisoner. Thus, she contends that the felony
conviction violates the double jeopardy protection against being twice punished for the same act.
For purposes of double jeopardy, “the test to be applied to determine whether there are
two offenses or only one, is whether each [statutory] provision requires proof of a fact which the
other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). Applying this test in
Whalen v. United States, 445 U.S. 684 (1980), the United States Supreme Court noted that
although courts should not look to the facts as alleged in the indictments, id. at 694 n.8, courts
should look at the elements of the offense as alleged in the indictments. Thus, in Whalen, the
Supreme Court ruled as follows:
In this case, resort to the Blockburger rule leads to the
conclusion that Congress did not authorize consecutive sentences
for rape and for a killing committed in the course of the rape, since
it is plainly not the case that “each provision requires proof of a
fact which the other does not.” A conviction for killing in the
course of a rape cannot be had without proving all the elements of
the offense of rape. The Government contends that felony murder
and rape are not the “same” offense under Blockburger, since the
former offense does not in all cases require proof of a rape; that is,
[the felony murder statute] proscribes the killing of another person
in the course of committing rape or robbery or kidnapping or
arson, etc. Where the offense to be proved does not include proof
of a rape -- for example, where the offense is a killing in the
perpetration of a robbery -- the offense is of course different from
the offense of rape, and the Government is correct in believing that
cumulative punishments for the felony murder and for a rape
would be permitted under Blockburger. In the present case,
however, proof of rape is a necessary element of proof of the
felony murder, and we are unpersuaded that this case should be
treated differently from other cases in which one criminal offense

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requires proof of every element of another offense. There would
be no question in this regard if Congress, instead of listing the six
lesser included offenses in the alternative, had separately
proscribed the six different species of felony murder under six
statutory provisions. It is doubtful that Congress could have
imagined that so formal a difference in drafting had any practical
significance, and we ascribe none to it. To the extent that the
Government’s argument persuades us that the matter is not entirely
free of doubt, the doubt must be resolved in favor of lenity.
445 U.S. at 693-94 (citations and footnote omitted).
When I apply the Supreme Court of Virginia’s reasoning in Coleman v. Commonwealth,
261 Va. 196, 200-01, 539 S.E.2d 732, 734 (2001), which appears to be at variance with Whalen,
I must conclude that in this case, although a conviction under Code § 18.2-250.1 requires proof
of possession of marijuana and a conviction under Code § 18.2-474.1 may be proved by delivery
of marijuana (and, thus, necessarily possession), the latter conviction does not require proof of
possession (i.e., it also may be proved by an attempt to deliver or conspiracy to deliver, which
was not the proof in this case). Thus viewed, the possession of marijuana cannot be deemed a
lesser-included offense of Code § 18.2-474.1. For these reasons, I concur in affirming the
conviction.