ROBERT CHIANELLI, SR.
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH. Leslie L. Lilley, Judge.
James O. Broccoletti (Randall J. Leeman, Jr.; Zoby, Broccoletti & Normile, P.C., on brief), for appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Petty and Decker. OPINION BY JUDGE ROBERT J. HUMPHREYS.
[64 Va.App. 635] ROBERT J. HUMPHREYS,
Robert Chianelli, Sr. (" Chianelli" ) appeals his conviction for the sale/possession with intent to sell drug paraphernalia pursuant to Code § 18.2-265.3 by the City of Virginia Beach Circuit Court (the " circuit court" ). Chianelli asserts two assignments of error in support of his appeal. First, he argues that the circuit court erred in " holding
that he could not raise a facial challenge to Virginia's drug paraphernalia statute." Second, he argues that the circuit court erred in rejecting his challenge to Code § 18.2-265.3 on the ground that it was unconstitutionally vague as applied to Chianelli's conduct.
" On appeal, we view the facts established at trial in the 'light most favorable' to the prevailing party below, in this case the Commonwealth, and we grant to that party all fair inferences flowing from those facts." Crawford v. Commonwealth, 55 Va.App. 457, 462 n.1, 686 S.E.2d 557, 559 n.1 (2009) (citations omitted). In this light, the evidence establishes the following.
[64 Va.App. 636]A. The Investigation
Chianelli has owned and operated Papa Joe's Smoke Shop (" Papa Joe's) in Virginia Beach since 2008. On April 27, 2010, undercover Virginia Beach police detectives Cutler and Shabu visited Papa Joe's to investigate a complaint that the store was selling suspected drug paraphernalia. Upon first entering the store the officers observed " hundreds of bowls," " bongs," " drug test kits," " liquid detoxification drinks," " vaporizers," " grinders," " hidden concealment devices," " digital scales," --some of which were designed to look like innocuous items such as a cell phone--and a " high end LED grow apparatus." Throughout the store, there were paraphernalia and memorabilia for sale, such as glass bowls, glass bongs, magazines, stickers, posters, etc., that depicted marijuana leaves. There was also a mannequin wearing a " gas mask" " with a bong apparatus attached to it."
The undercover detectives approached the counter and told the clerk that they " were looking for some glass bowls." There was a glass display case with a sign that read, " All pipes are for tobacco use only. All pipes and water pipes are called just that, please do not call them anything else. Any mention of illegal substances will result in refusal of sale, and you'll be asked to leave. Thank you. Papa Joe's." Another sign read, " All accessory items are for tobacco use only." Nearby, another sign stated, " IQ test, Can you say water pipe?" After the clerk removed several glass bowls from the display case, and the detectives selected one to purchase, Shabu told Cutler within earshot of the clerk that " I'll buy the bud, if you buy the bowl."  Cutler turned to the clerk and [64 Va.App. 637] said " You heard that right?" to which the clerk said " yeah." Cutler then asked the clerk directly if they had " some bud in the back," but the clerk said that they did not " have any of that here."
Before exiting Papa Joe's, the detectives walked over to a large " high end," " LED" light " grow machine." Chianelli initiated a conversation with Cutler and Shabu where he described the machine's attributes. Cutler then said to Shabu, " [w]e can go half on this when you get your paycheck, but then we won't be able to get any bud for a while." Shabu said to Chianelli, " I thought it was illegal to sell this stuff in Virginia Beach?" Chianelli responded, " It's for tobacco use only." Shabu replied, " Oh, that's how you get around it?" Chianelli said, " [w]ell, you just have to be discreet about it. Things are a little lax now. They have been a little more laxed [sic] over the past four or five years."
On May 3, 2010, Cutler and Shabu again entered Papa Joe's in their undercover capacity. The two detectives approached the same clerk and asked about the grow equipment and if the store had sold many of those machines to which the clerk replied no. Cutler stated that he thought this was because a person would have to spend all their money to buy it, then grow it, and " wouldn't have any bud for a while." He asked the clerk " how long it would take to grow?" The clerk
replied, " Six weeks. Yeah. That stuff grows like weed." Cutler and Shabu then browsed some other merchandise, and Cutler told the clerk that he would " take this one-hitter." A " one hitter" is a small smoking device used to place a small amount of marijuana for " one quick hit."
Finally, on May 5, 2010, Cutler and Shabu returned to Papa Joe's, this time identifying themselves as police officers investigating the sale of illegal drug paraphernalia, and informed Chianelli that they would be seizing any illegal drug paraphernalia. Chianelli gave the officers permission to search the [64 Va.App. 638] store. The officers seized and photographed dozens of items. In addition to the items described above, the officers seized what they believed to be synthetic cannabinoids and pouches and cases used to transport pipes and bongs. Inside Chianelli's back office, the officers saw a sign on the wall that said " Mary Jane's potpourri. Slinging it here," and another that said " 100 percent natural dank on sale here."  Inside his desk, they recovered numerous business cards and advertisements depicting marijuana leaves, a card that depicted a topless woman and read " I love pot," as well as catalogs featuring various types of glass bongs for sale. The officers did not seize any items that were unrelated to drug paraphernalia such as tobacco products, beer, energy drinks, soft drinks, cigars, cigarettes, humidors, hookahs, etc. No marijuana was found on the premises.
After collecting all the evidence, Cutler advised Chianelli of his rights to counsel and to remain silent, and Chianelli indicated that he understood his rights and then waived those rights to make a statement to the detective. At trial Cutler testified to highlights of their conversation as follows:
[Cutler:] " You understand customers come in to buy paraphernalia for the purposes of smoking marijuana or other illegal substances with them, correct?"
[Chianelli:] " I do understand that."
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[Chianelli:] " I sell to people who have legitimate medical problems. They don't like ...