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 
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 
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,  which criminalizes 
distribution of controlled substances.  She contends, as possession  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 
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.


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 
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.


  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."

  Code  18.2-250.1 states, "It is unlawful for any person knowingly or intentionally to 
possess marijuana . . . ."


 

 
 
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