COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued by teleconference
TYRONE DUNBAR
OPINION BY
v. Record No. 2029-97-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 30, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Lee W. Kilduff (Morchower, Luxton & Whaley,
on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Tyrone Dunbar ("defendant") was convicted by bench trial of
possession of cocaine with intent to distribute in violation of
Code § 18.2-248. On appeal, defendant contends: 1) the trial
court erred by admitting evidence that he committed prior crimes,
and 2) the evidence was insufficient to sustain his conviction.
We find no error and affirm.
I.
FACTUAL BACKGROUND
On January 28, 1997, Chesterfield County police executed a
search warrant for cocaine and cocaine paraphernalia at
defendant's apartment. Upon entry, police found defendant
standing alone in the living room. Underneath a sofa in the
living room, Sergeant James Herring, one of the officers who
searched the apartment, found a bag containing cocaine inside a
typewriter case. Directly in front of the sofa, police found a
"couple of coasters," one of which contained a razor blade and a
rock of cocaine. On the right side of the sofa, police found "a
metal pipe that had cocaine residue in it" lying on a chair.
Under the chair, police found an Altoids mint box, which
contained "a cleaner for cleaning metal pipes used to smoke crack
cocaine."
While still in the apartment, the police advised defendant
of his Miranda rights. After indicating that he understood his
rights, defendant agreed to answer police questions.
At trial, Sergeant Herring testified concerning the search
of defendant's apartment and the questions police asked defendant
in the apartment. Referring to the cocaine, Herring asked
defendant "if he sold a little bit to make ends meet." According
to Herring, defendant replied, "yes."
Defendant objected to this question, arguing that it
constituted inadmissible evidence of a past crime. The court
overruled the objection, finding that "the question as posed
really does not deal with past acts, but in fact deals with a
statement that is on-going, 'Do you, in fact, sell a little bit
to make ends meet' . . . ."
On cross-examination by defendant's counsel, Herring
explained he asked the question in the present tense, stating, "I
asked him does he sell. I did not ask him in the past tense. I
asked him in the present tense does he sell." Herring also asked
defendant whether he had smoked any cocaine on the day of the
search. Defendant replied he did "not smoke cocaine right now
because he is applying for a job that requires a urinalysis upon
employment."
- 2 -
Defendant subsequently moved to strike on the ground that
the evidence did not prove beyond a reasonable doubt his intent
to distribute cocaine. The court overruled the motion and
subsequently found defendant guilty.
II.
OTHER CRIMES
The Commonwealth argues that Herring's testimony regarding
defendant's sales of cocaine does not relate to prior crimes
committed by defendant because the police inquiry addressed
present conduct. Indeed, the trial court found that the inquiry
related to present conduct. However, defendant's admission
logically implicates the commission of past crimes as well and,
on that basis, we address defendant's contention that Herring's
testimony constitutes inadmissible evidence of prior crimes.
In support of his argument, defendant cites the cases of
Donahue v. Commonwealth, 225 Va. 145, 300 S.E.2d 768 (1983);
Eccles v. Commonwealth, 214 Va. 20, 197 S.E.2d 332 (1973); and
Boyd v. Commonwealth, 213 Va. 52, 189 S.E.2d 359 (1972). These
decisions, however, do not control the outcome of this case.
"It is well settled that evidence of other crimes or bad
acts of an accused is generally inadmissible in a criminal
prosecution." Wilkins v. Commonwealth, 18 Va. App. 293, 297, 443
S.E.2d 440, 443 (1994) (en banc). "The purpose of this rule is
to prevent confusion of offenses, unfair surprise to the
defendant and a suggestion of 'criminal propensity,' thus
preserving the 'presumption of innocence.'" Crump v.
Commonwealth, 13 Va. App. 286, 289, 411 S.E.2d 238, 240 (1991)
- 3 -
(quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890,
893 (1983)).
However, the law will not permit one accused
of a crime to go unpunished simply because
the Commonwealth cannot prove his guilt
without bringing in some evidence which tends
to show that he has committed other crimes.
Thus, the general rule . . . must sometimes
yield to society's interest in the
truth-finding process, and numerous
exceptions allow evidence of prior misconduct
whenever the legitimate probative value
outweighs the incidental prejudice to the
accused.
Wilkins, 18 Va. App. at 297, 443 S.E.2d at 443 (citations and
quotations omitted). "'[T]he responsibility for balancing . . .
probative value and prejudice rests in the sound discretion of
the trial court,' and its decision 'will not be disturbed on
appeal in the absence of a clear abuse.'" Id. at 298, 443 S.E.2d
at 443 (quoting Ferrell v. Commonwealth, 11 Va. App. 380, 390,
399 S.E.2d 614, 620 (1990)).
Among the exceptions to the general rule against
admissibility, the accused's intent "may be shown by prior bad
acts evidence when relevant to prove a material element or issue
of the crime charged." Lafon v. Commonwealth, 17 Va. App. 411,
417, 438 S.E.2d 279, 283 (1993). Such evidence is admissible to
show, inter alia, the intent with which a crime is committed.
Tomlinson v. Commonwealth, 8 Va. App. 218, 224, 380 S.E.2d 26,
29-30 (1989) (holding that, in a trial for shooting into an
occupied dwelling, evidence the defendant shot into a second
dwelling in the same evening was properly admitted to show the
defendant's intent).
- 4 -
Furthermore, evidence of other crimes may be admitted when
"'the evidence is connected with or leads up to the offense for
which the accused is on trial' or when 'the other crimes
constitute a part of the general scheme of which the crime
charged is a part.'" Rodriguez v. Commonwealth, 249 Va. 203,
206, 454 S.E.2d 725, 726 (1995) (quoting Kirkpatrick v.
Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). The
admissibility of such evidence is based on the fact that it is
often "impossible to give a connected statement showing the crime
charged without incidental reference to . . . contemporaneous and
similar crimes . . . ." Kirkpatrick, 211 Va. at 272, 176 S.E.2d
at 805. The rationale for admitting evidence of related crimes
is also stated in Scott v. Commonwealth:
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.
The fact-finder is entitled to all of the
relevant and connected facts, including those
which followed the commission of the crime on
trial, as well as those which preceded it;
even though they may show the defendant
guilty of other offenses. Evidence of such
connected criminal conduct is often relevant
to show motive, method, and intent. Indeed,
it may be the only way in which such matters
may be shown, as was the case here.
228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984), quoted in
Satterfield v. Commonwealth, 14 Va. App. 630, 635-36, 420 S.E.2d
228, 231-32 (1992) (en banc).
In Rodriguez, the Virginia Supreme Court distinguished the
cases cited by defendant. In Donahue, Eccles, and Boyd, evidence
that an accused previously sold or used drugs was inadmissible
- 5 -
because those acts "were wholly unrelated to the offenses for
which the respective defendants were on trial." Rodriguez, 249
Va. at 207, 454 S.E.2d at 727. See also Wilson v. Commonwealth,
16 Va. App. 213, 221, 429 S.E.2d 229, 234 (1993) (stating that
Donahue, Eccles, and Boyd stand for the proposition that "prior
sales of drugs do not, without more, tend to prove that an
accused on another unrelated occasion intended to possess or sell
drugs").
Applying these principles to this case, we find no error in
the trial court's admission of Herring's testimony regarding
defendant's prior sales. When police found cocaine in
defendant's apartment, defendant admitted to selling small
quantities of the drug in order to make money. Herring asked
defendant whether "he sold a little bit [of cocaine] to make ends
meet." Defendant replied, "yes." Defendant’s admission gives
rise to the inference that he was selling cocaine on a regular
basis.
Defendant's admission that he was selling drugs, although
evidencing his commission of prior crimes, establishes "a general
scheme of which the crime charged is a part." The evidence was
probative of defendant's present intent to distribute the cocaine
found in his apartment. Unlike the cases on which defendant
relies, here, the Commonwealth did not present evidence of prior
crimes that was "wholly unrelated" to the offense for which he
was on trial. Defendant's admission that he was selling drugs
established an on-going "general scheme" involving the regular
sale of drugs. Thus, under the principles enunciated in
- 6 -
Rodriguez, the trial court properly admitted evidence of
defendant's prior crimes "because it was 'so intimately connected
and blended with the main facts adduced in evidence' that it
should not be excluded from consideration." Rodriguez, 249 Va.
at 206, 454 S.E.2d at 727 (quoting Kirkpatrick, 211 Va. at 273,
176 S.E.2d at 806).
For the foregoing reasons, we find no error in the trial
court's admission of Herring's testimony.
III.
SUFFICIENCY OF THE EVIDENCE
Defendant also contends the evidence was insufficient to
prove he intended to distribute the cocaine found in his
apartment. We disagree.
"'On appeal, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. The judgment of a trial
court sitting without a jury is entitled to the same weight as a
jury verdict and will not be set aside unless it appears from the
evidence that the judgment is plainly wrong or without evidence
to support it.'" Wilkins, 18 Va. App. at 295, 443 S.E.2d at 442
(quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d
415, 418 (1987)). We "must discard all evidence of the accused
that conflicts with that of the Commonwealth and regard as true
all credible evidence favorable to the Commonwealth and all fair
inferences reasonably deducible therefrom." Lea v. Commonwealth,
16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). "The weight
which should be given to evidence and whether the testimony of a
- 7 -
witness is credible are questions which the fact finder must
decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986).
"Possession with intent to distribute is a crime which
requires 'an act coupled with a specific intent.'" Stanley v.
Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991)
(quoting Adkins v. Commonwealth, 217 Va. 437, 440, 229 S.E.2d
869, 871 (1976)). "[F]or a defendant to be convicted of
possession of a controlled substance with the intent to
distribute, the Commonwealth must prove that the defendant
possessed the controlled substance contemporaneously with his
intention to distribute that substance." Id. Because direct
evidence is often impossible to produce, intent may be shown by
circumstantial evidence that is consistent with guilt,
inconsistent with innocence, and excludes every reasonable
hypothesis of innocence. Wilkins, 18 Va. App. at 298, 443 S.E.2d
at 444.
Here, police found cocaine in defendant's apartment. Upon
questioning, defendant admitted to selling small quantities of
the drug for his pecuniary gain. He also denied present use of
cocaine. Although defendant contends the presence of drug
paraphernalia is probative of his intent to personally use
cocaine, and not to distribute, such evidence does not
conclusively refute a finding of intent to distribute. See
Stanley, 12 Va. App. at 869, 407 S.E.2d at 14-15 (stating that
the trier of fact is entitled to weigh all the circumstances in a
given case and that "a conviction for possession with the intent
- 8 -
to distribute may be upheld even though the quantity of drugs
seized is consistent with personal use").
Furthermore, although defendant made statements to police
that would indicate he possessed the cocaine for personal use
only, he also stated that he was not using drugs because of
employment-related drug screening. The trial court was entitled
to disbelieve his explanation and conclude he lied to conceal his
guilt. See Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
S.E.2d 233, 235 (1998). We find the evidence is sufficient to
conclude beyond a reasonable doubt that defendant possessed
cocaine with the intent to distribute.
For the foregoing reasons, we affirm.
Affirmed.
- 9 -