COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
MICHAEL L. THORNTON
OPINION BY
v. Record No. 0582-99-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Ronald W. Vaught for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Michael L. Thornton of two counts of
distribution of more than one-half ounce but less than five
pounds of marijuana, three counts of distribution of less than
one-half ounce of marijuana, and one count of possession of
marijuana. The convictions arose from separate sales to a
confidential informant, but all issues on appeal arise from only
one of the transactions. The defendant contends that the trial
court erred (1) in admitting evidence of other crimes, (2) in
allowing the Commonwealth to make an improper rebuttal, and (3)
in failing to give a cautionary instruction. Finding no error,
we affirm.
A police special agent gave his informant $250 to purchase
an ounce of marijuana and a gram of either methamphetamine or
cocaine. The informant went to the defendant's house and asked
for those drugs. After agreeing to the price, the defendant
told the informant to leave the $250 and call him back in a day
or two. The defendant did not anticipate any problem filling
the order. Two days later the informant returned, but the
defendant only gave him less than one-half an ounce of
marijuana. The defendant returned $200 in cash and remarked
"that he'd had the other drugs available but had sold them the
night before."
The defendant moved for a mistrial arguing the reference to
having sold drugs the night before was evidence of other crimes,
inadmissible, and highly prejudicial. The trial court overruled
the motion stating that the evidence was "all parts and parcel
of the same transaction."
"Where a course of criminal conduct is continuous and
interwoven, consisting of a series of related crimes, the
perpetrator has no right to have the evidence 'sanitized' so as
to deny the jury knowledge of all but the immediate crime for
which he is on trial." Scott v. Commonwealth, 228 Va. 519, 526,
323 S.E.2d 572, 577 (1984). "The fact-finder is entitled to all
of the relevant and connected facts," including those which
occurred before or after the crime charged, "even though they
may show the defendant guilty of other offenses." Id. at
526-27, 323 S.E.2d at 577 (citations omitted). See Kirkpatrick
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v. Commonwealth, 211 Va. 269, 276, 176 S.E.2d 802, 807-08
(1970).
The evidence established, without objection, that the
informant gave the defendant $250 for marijuana and either
methamphetamine or cocaine. The defendant agreed to provide
those drugs. Two days later, the defendant produced the
marijuana but returned $200 in cash. The witness explained what
happened when he met with the defendant and received only part
of what he had ordered and the return of most of his purchase
money. He recounted the defendant's explanation as part of an
uninterrupted narrative of their meeting. The defendant's
statement that he had sold the other drugs the night before
explained why he did not complete the sale as arranged. It was
intimately connected with and arose out of the same transaction
for which the defendant was on trial. The Commonwealth was
entitled to explain that transaction.
Evidence of other crimes, which are "so intimately
connected and blended with facts proving the commission of the
offense charged," may be admissible because "it cannot be
separated with propriety." Sutphin v. Commonwealth, 1 Va. App.
241, 246, 337 S.E.2d 897, 899 (1985) (citations omitted). The
probative value of that evidence explaining the defendant's
conduct and completing the story of the transaction "outweighed
any incidental prejudice to [the defendant] in the form of
evidence that [the defendant] may have been involved in other
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drug distributions." Newton v. Commonwealth, 29 Va. App. 433,
454, 512 S.E.2d 846, 856 (citing Scott, 228 Va. at 526-27, 323
S.E.2d at 577), cert. denied, 120 S. Ct. 540 (1999).
The defendant also contends that the trial court erred in
permitting the Commonwealth to make improper argument during
rebuttal argument. The defendant was charged with two felonies
and four misdemeanors but the total quantity of marijuana sold
was only 1.78 ounces. Throughout the trial, the defense
maintained the offense was not serious because the total
quantity sold was small. In his closing argument, he again
stressed the total quantity involved, an eighth of a pound, and
he urged the jury "to put things in perspective."
To that argument, the Commonwealth responded that each time
the informant sought to buy marijuana the defendant possessed it
and sold it to him. The Commonwealth noted that the amount of
money the informant offered determined the amount of marijuana
sold. It pointed out that as the request increased in value the
defendant provided the greater amounts. Breaking into
hyperbole, the Commonwealth concluded, "I guarantee you if they
had $1,000 to buy pot with and go see [the defendant], they'd
have gotten $1,000 worth of pot . . . . So the quantity is based
on what we had when we started out. If we'd had $1,000, we'd be
talking about pounds."
The defendant objected that the Commonwealth was arguing a
hypothetical situation and that it was inappropriate for the
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Commonwealth to speculate about $1,000 worth of drugs. The
trial court ruled that the Commonwealth was "within bounds" but
asked him to "move off of it [because] [i]t could become
argumentative," and the Commonwealth moved to a different
argument.
The trial court has broad discretion to determine whether a
closing argument is inappropriate. See Canipe v. Commonwealth,
25 Va. App. 629, 639, 491 S.E.2d 747, 751-52 (1997); Fain v.
Commonwealth, 7 Va. App. 626, 629, 376 S.E.2d 539, 540-41
(1989). The trial court's exercise of its discretion will not
be disturbed on appeal unless the record affirmatively shows
that it has been abused and that the defendant has been
prejudiced. See Canipe, 25 Va. App. at 639, 491 S.E.2d at 752;
Novak v. Commonwealth, 20 Va. App. 373, 392, 457 S.E.2d 402, 411
(1995); Hernandez v. Commonwealth, 15 Va. App. 626, 636-37, 426
S.E.2d 137, 143 (1993).
Upon a review of the record, we conclude that the trial
court did not abuse its discretion in overruling the objection
to the Commonwealth's rebuttal. The defendant has not alleged,
nor is there any evidence, that he was prejudiced by the remark.
The Commonwealth's argument that the amount of marijuana
purchased was dictated by the amount of money the informant had
to offer directly responded to the defendant's primary
contention. Immediately upon ruling, the trial judge suggested
that the Commonwealth move to a different argument, and the
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Commonwealth, realizing the suggestion was imperative, abandoned
the topic. The trial court's handling of the objection was an
appropriate exercise of discretion. Because the trial court did
not err, we need not address the argument that the trial court
failed to give a cautionary instruction.
Accordingly, we affirm the defendant's convictions.
Affirmed.
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