Cooper v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
Elder, Bray, Annunziata, Bumgardner, Lemons and Frank
Argued at Richmond, Virginia

PATRICK SEAN COOPER
OPINION BY
v. Record No. 3073-97-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge

Elizabeth Ippolito, Assistant Public
Defender, for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

On June 15, 1999, a panel of this Court affirmed Patrick

Sean Cooper's conviction of possession of an imitation

controlled substance with intent to distribute. See Cooper v.

Commonwealth, 30 Va. App. 26, 515 S.E.2d 320 (1999). On June

25, 1999, we granted Cooper's petition for a rehearing en banc.

Upon rehearing en banc, we reverse the conviction.

On appeal, Cooper argues that the trial court erred in

admitting other crimes evidence and that the evidence was

insufficient to prove he intended to distribute the substance.

We agree.
 We view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible from the evidence. See Archer v. Commonwealth, 26 Va.

App. 1, 11, 492 S.E.2d 826, 831 (1997).

Alexandria Police Officer Ballenger arrested Cooper on an

outstanding warrant and found five individually packaged rocks

of fake crack cocaine when searching him. The officer asked if

the substance was "demo" which is slang for fake crack cocaine.

Cooper replied, "[y]ou know it." Officer Ballenger testified

that the individually wrapped substance resembled crack cocaine

in every respect and was packaged more consistently with

distribution than with personal use. He also testified that

there was no reason for an individual "to intentionally purchase

fake crack cocaine."

Over objection, a state trooper testified that

approximately two months earlier he made an undercover purchase

from Cooper of what turned out to be fake cocaine. He was

attempting to purchase crack cocaine from Cooper who gave him

two packages apparently containing crack but which tested

negative for cocaine. The imitation substance and the

certificate of analysis from the earlier sale were admitted into

evidence.

In the defense case, Cooper testified that a friend had

shown him the fake cocaine and handed it to him just as the

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police arrived. He was left holding it as his friend walked

away, so he put it in his pocket in order not to draw attention

to himself. He denied possessing it with intent to distribute

it.

ANALYSIS

It has long been settled that evidence that the accused

committed other crimes is inadmissible to prove guilt of the

crime for which the accused is on trial, notwithstanding the

similar natures of the two crimes. See Kirkpatrick v.

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970).

Other crimes evidence not having "'such necessary conne[ct]ion

with the transaction then before the court as to be inseparable

from it'" is irrelevant and inadmissible. Guill v.

Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489, 492 (1998)

(quoting Walker v. Commonwealth, 28 Va. (1 Leigh) 574, 580

(1829)). The "necessary connection" between a prior crime and

the offense being prosecuted may be established by showing "'a

causal relation or logical and natural connection between the

two acts, or [that] they . . . form parts of one transaction.'"

Id. at 140, 495 S.E.2d at 492 (quoting Barber v. Commonwealth,

182 Va. 858, 868, 30 S.E.2d 565, 569 (1944)). In the absence of

such a showing, the evidence can serve but one purpose: to show

that the defendant has a propensity to commit crimes or a

particular type of crime and, therefore, probably committed the

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offense for which he is being tried. See id. at 139, 495 S.E.2d

at 492. The admission of such evidence for that purpose is

prohibited. See id. at 138, 495 S.E.2d at 491.

The general rule precluding admissibility has many

exceptions which are as well established as the rule itself.

See Morton v. Commonwealth, 227 Va. 216, 222, 315 S.E.2d 224,

228, cert. denied, 469 U.S. 862 (1984). Among them is the

admission of prior crimes evidence to prove intent. "[E]vidence

of other crimes is allowed when it tends to prove motive,

intent, or knowledge of the defendant." Guill, 255 Va. at 138,

495 S.E.2d at 491; see Charles E. Friend, The Law of Evidence in

Virginia § 12-15 (4th ed. 1993). The exception notwithstanding,

a clear nexus must be shown to exist between the two

transactions before the evidence may be admitted to establish

intent. See Hill v. Commonwealth, 17 Va. App. 480, 486, 438

S.E.2d 296, 300 (1993) ("The nexus must be greater than the

basic recitation that intent is an element of the offense

because intent is an element of any offense. To conclude

otherwise is to allow the exception in Kirkpatrick to swallow

the general rule."); see also Guill, 255 Va. at 139, 495 S.E.2d

at 492. Proceeding from these foundational requirements, both

this Court and the Virginia Supreme Court have repeatedly

rejected the admission of evidence of separate and unrelated

prior drug transactions to show a defendant's sale of drugs or

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possession of drugs with the intent to distribute. See Donahue

v. Commonwealth, 225 Va. 145, 154-56, 300 S.E.2d 768, 773-74

(1983); Eccles v. Commonwealth, 214 Va. 20, 21-22, 197 S.E.2d

332, 332-33 (1973); Boyd v. Commonwealth, 213 Va. 52, 52-53, 189

S.E.2d 359, 359-60 (1972); Hill, 17 Va. App. at 485-87, 438

S.E.2d at 299-300; Wilson v. Commonwealth, 16 Va. App. 213,

219-23, 429 S.E.2d 229, 233-35, aff'd on reh'g en banc, 17 Va.

App. 248, 436 S.E.2d 193 (1993).

We find the required nexus between Cooper's prior sale of

imitation cocaine and the present charge is lacking in this case

and that the evidence was thus erroneously admitted. Cooper's

sale of imitation cocaine approximately two and one-half months

before the charged offense was a separate act without logical or

natural connection with Cooper's present charge of possession of

imitation cocaine with the intent to distribute. Likewise,

there is no evidentiary basis upon which to find that Cooper's

previous sale and the present charge form parts of a single

transaction. See Guill, 255 Va. at 139-40, 495 S.E.2d at 492.

As such, the evidence at issue was irrelevant and its admission

was improper and prejudicial because it showed only Cooper's

propensity to commit the crime charged. See id.; Wilson, 16 Va.

App. at 223, 429 S.E.2d at 235.

For the reasons stated above, we also find that the

evidence of another crime was inadmissible under the "general

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scheme" exception to the rule. See Rodriguez v. Commonwealth,

249 Va. 203, 206, 454 S.E.2d 725, 727 (1995). In Rodriguez, the

other crimes evidence concerned defendant's on-going

participation in a common scheme with others to purchase and

distribute illegal drugs. Thus, the prior crimes evidence

tended to prove defendant's participation in a drug distribution

ring. In contrast, while Cooper's prior arrest for attempted

distribution of an imitation illegal substance was of the same

nature as the conviction which he now appeals, no evidence

supported a connection between that earlier crime and the later

offense. The record reveals them only to be discrete events of

a common nature. Without more, the "general scheme" exception

does not apply. See Donahue, 225 Va. 145, 300 S.E.2d 768

(Supreme Court reversed conviction of defendant on charge of

distribution of illegal narcotics because it held evidence of

her drug dealing one month earlier was not sufficiently

connected with later drug dealing to constitute a "general

scheme").

Finally, we disagree with the Commonwealth's contention

that Cooper's prior crime was admissible to rebut his testimony.

This case may be distinguished from our decision in Satterfield

v. Commonwealth, 14 Va. App. 630, 420 S.E.2d 228 (1992), in

which we held that evidence of the defendant's previous drug

distribution activities was properly admitted to rebut his

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contention that he only intended to use drugs found in his

possession, and to prevent the jury from being misled by the

defendant's testimony. Here, although Cooper ultimately stated

in his defense that he had not formulated the intent to

distribute, 1 his testimony followed the admission of the

challenged evidence and logically cannot provide the foundation

upon which the Commonwealth seeks to justify the admission of

rebuttal evidence in its case-in-chief. The risk of misleading

the fact finder in the absence of the evidence at issue did not

exist in this case as Cooper had not testified and no statement

relating his innocent possession of the substance had been

introduced in the Commonwealth's case-in-chief. See id. at

635-37, 420 S.E.2d at 231-32; see also Scott v. Commonwealth,

228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984). Hence, there

was nothing to rebut. See Hill, 17 Va. App. at 486-87, 438

S.E.2d at 300.

The Commonwealth argues that Cooper provided the foundation

for the challenged evidence in his opening statement when he

1
Appellant testified that at the time of his arrest,

what I really wanted to do . . . was throw
[the imitation drug evidence] down, but [the
police] were watching . . . . I never got to
the point to form an opinion of what I was
going to do with the substance. Actually, I
was just looking at it with friends until
[someone] yelled "narcotics." . . . [T]hey
was just showing it to me.

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noted the absence of certain critical factors in the

Commonwealth's evidence, including intent. We disagree. The

opening statement is not evidence, and, thus, cannot "open the

door" for otherwise inadmissible prior crimes evidence. See

Bynum v. Commonwealth, 28 Va. App. 451, 458-59, 506 S.E.2d 30,

34 (1998) (opening statement does not "open the door" to

otherwise inadmissible evidence because the statement is not

evidence); cf. United States v. Hadaway, 681 F.2d 214, 218 (4th

Cir. 1982) (holding that a defendant's assertions in his opening

statement may, in connection with other facts, be considered in

determining the admissibility of other crimes evidence).

We further find the erroneous admission of the evidence was

not harmless. "A nonconstitutional error is harmless if 'it

plainly appears from the record and the evidence given at trial

that the error did not affect the verdict.'" Scott v.

Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620 (1994)

(quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407

S.E.2d 910, 911 (1991) (en banc)). "'An error does not affect a

verdict if a reviewing court can conclude, without usurping the

[fact finder's] function, that had the error not occurred, the

verdict would have been the same.'" Id.

Based on our review of the record, we cannot conclude

without usurping the role of the fact finder that the trial

court's error was harmless.

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 [W]hen the trial judge erroneously and
unconditionally admits prejudicial evidence,
we cannot presume that the trial judge
disregarded that evidence which he ruled to
have probative value. While a judge is
uniquely qualified by training, education
and experience to disregard potentially
prejudicial aspects of inadmissible evidence
in the ultimate adjudication of the issue,
we cannot assume that the judge has done so
where the judge's rulings indicate
otherwise.

Wilson, 16 Va. App. at 223, 429 S.E.2d at 235-36 (citations

omitted). At trial, the evidence of Cooper's intent was in

conflict. Although Cooper admitted he knew the substance found

in his possession was imitation cocaine, the police did not

observe Cooper engage in any behavior indicative of drug selling

and did not find any characteristic tools of the drug trade on

his person at the time of his arrest on the street. Cooper

testified in his defense that friends had shown him the

imitation cocaine just before the police arrested him and that

he had not "form[ed] an opinion of what [he] was going to do

with the substance." Cooper's credibility was clearly at issue

in the case and was resolved against him by the trial court.

Without evidence of Cooper's prior sale of imitation cocaine, we

cannot conclude that it plainly appears the trial judge would

have disbelieved Cooper's testimony and found the evidence

sufficient beyond a reasonable doubt to support a conviction.

See Lilly v. Commonwealth, 258 Va. 548, 523 S.E.2d 208 (1999).

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 For the foregoing reasons, we hold that the trial court

erred in admitting the prior crimes evidence and that the error

was not harmless; accordingly, we reverse Cooper's conviction,

and remand for further appropriate proceedings consistent with

this opinion.

Reversed and remanded.

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Bumgardner, J., with whom Coleman, J., joins, dissenting.

I respectfully dissent and would affirm the conviction.

This case does not involve a drug transaction. It arose from

the drug scene, but it did not involve trafficking in illegal

narcotics. The substance involved was not controlled, and that

characteristic is essential when drawing on precedent that

involved actual drugs.

Fake or imitation cocaine is innocuous. It is not

proscribed, mere possession is not illegal. An imitation

substance has two characteristics: (1) it is not a controlled

drug, and (2) it imitates, mimics, impersonates, or masquerades

as a controlled drug. This case involved a substance that

imitated cocaine, specifically crack cocaine, a form of the drug

distributed in small bits and chunks roughly the size and shape

of rock salt.

When an innocuous substance takes on the physical

characteristics of crack cocaine, it becomes virtually useless

for its normal purpose. A chip of soap or a bit of nut that

looks like a real rock of crack cocaine is useless as soap or a

snack because of size alone. It has no utilitarian value other

than to be sold as that which it resembles. In this case, the

Commonwealth presented evidence of that characteristic of fake

crack cocaine, and this Court acknowledged as much in Werres v.

Commonwealth, 19 Va. App. 744, 749, 454 S.E.2d 36, 39 (1995).

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"By its nature, an imitation controlled substance has little or

no use other than its commercial value in being misrepresented

and sold as a controlled substance." Id.

The Commonwealth had to prove the defendant knowingly

possessed imitation cocaine and intended to distribute it. It

had to prove the defendant knew the true nature of the

substance: that he knew it was not genuine crack cocaine, that

he knew the substance so closely resembled the real thing that

it could pass for it. In proving that the defendant knew those

two characteristics of the substance, the Commonwealth was

entitled to show that the defendant knew fake crack had no use

but to be misrepresented and sold as genuine.

The Commonwealth offered this argument: all fake crack

cocaine is misrepresented and sold as real cocaine; the

defendant possessed fake crack cocaine; therefore, the fake

crack cocaine that the defendant possessed was to be

misrepresented and sold as real cocaine. Facts tending to prove

that the defendant knew the substance had no innocent use would

also tend to prove he intended to sell it as real cocaine. The

evidence of the defendant's prior sale supports the premise that

all fake crack is misrepresented and sold. It confirms the

accuracy of the conclusion; the defendant possessed with the

intent to misrepresent and sell. If you knowingly possess

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something that has no use but to be distributed, then it is

logical to infer that you possessed it for that purpose.

At trial, the defendant maintained the evidence showed only

that he was arrested while innocently holding a substance that

was not an illegal substance. He denied possessing it with

intent to distribute it. He admitted acknowledging the

substance was "demo," but that admission only established one

aspect of its nature: that it was not a controlled substance.

It did not address the second characteristic of this imitation

substance; it so resembled the real substance that it had no

legitimate use.

The evidence of the earlier sale that the Commonwealth

offered fits recognized exceptions to the rule excluding

evidence of prior offenses. The evidence showed the defendant

knew the true nature of the substance. It showed he was not an

innocent bystander accidentally or inadvertently holding the

object when the police arrived. It showed the motive for his

possession of a useless item. See Charles E. Friend, The Law of

Evidence in Virginia § 12-15 (5th ed. 1999); McCormick on

Evidence § 190 (5th ed. 1992).

In weighing the prejudice of the evidence versus its

probative value as required by Guill v. Commonwealth, 255 Va.

134, 140, 495 S.E.2d 489, 492 (1998), the prejudice associated

with distributing an imitation substance is less than that

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associated with prior possession of an illegal substance.

Knowledge a defendant possessed illegal drugs can inflame a fact

finder into misusing the evidence. The volatility is lower when

the evidence does not involve distributing illegal drugs but of

defrauding those who do. Additionally, a trial judge would not

be as susceptible as a jury to prejudicial use of evidence of

prior crimes. In this case, the legitimate probative value of

the evidence outweighs the incidental prejudice. See Woodfin v.

Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988),

cert. denied, 490 U.S. 1009 (1989).

I believe the nature of the substance involved

distinguishes this case from true drug cases in which unrelated

prior drug transactions have been repeatedly rejected as

evidence. In this case, the prior offense showed much more than

a simple propensity to commit the crime charged. Accordingly, I

would hold that trial court properly admitted the evidence.

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