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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