COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia
THOMAS PIERCE SMITH
MEMORANDUM OPINION * BY
v. Record No. 1500-96-4 JUDGE LARRY G. ELDER
JUNE 17, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
Mark Thomas Crossland for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Thomas Pierce Smith (appellant) appeals his conviction of
distribution of an imitation controlled substance in violation of
Code § 18.2-248. He contends (1) that the trial court erred when
it admitted evidence that he previously sold crack cocaine to an
undercover investigator and (2) that the evidence was
insufficient to support his conviction. For the reasons that
follow, we affirm.
I.
FACTS
Appellant was charged with "knowingly and intentionally
sell[ing], giv[ing] or distribut[ing] an imitation controlled
substance" on July 20, 1995. At his trial, Ronquillo Dean
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
testified that he was involved in two transactions with appellant
in July, 1995. Mr. Dean testified that he purchased crack
cocaine from appellant on July 10. Appellant's counsel did not
object to this testimony. Mr. Dean then testified that he
attempted to purchase a substance from appellant on July 20 that
appellant represented was crack cocaine but turned out to be
macadamia nuts packaged to look like crack cocaine.
Mervat Milad, a forensic scientist with the Division of
Forensic Science, testified about the identity of the substances
Mr. Dean obtained from appellant on July 10 and July 20.
Appellant's counsel objected to her testimony regarding the
substance purchased on July 10 on the ground that this was
inadmissible evidence of prior criminal conduct not relevant to
the charge that appellant sold an imitation controlled substance
on July 20. The trial court overruled appellant's objection and
cautioned the jury that it could consider the evidence of the
sale on July 10 "only for the purpose of showing intent and
showing a potential relationship between [appellant and Mr.
Dean.]" Ms. Milad subsequently testified that the substance
purchased from appellant on July 10 was cocaine. She also
testified that the substance obtained from appellant on July 20
was not a controlled substance.
A jury convicted appellant of distribution of an imitation
controlled substance. In the course of the proceedings, the
trial court denied appellant's motions to strike the evidence, to
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set aside the verdict, and to reconsider.
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II.
ADMISSIBILITY OF EVIDENCE REGARDING THE DRUG SALE ON JULY 10
Initially, we consider appellant's contention that his
objections to all of the evidence offered by the Commonwealth
regarding the drug sale on July 10 were properly preserved for
appeal. In his brief, appellant challenges the admissibility of
(1) Mr. Dean's testimony about his purchase from appellant on
July 10, (2) Ms. Milad's testimony that the substance purchased
was in fact crack cocaine, and (3) a certificate of drug analysis
stating Ms. Milad's opinion. We hold that of these three sources
of evidence, only appellant's objection to Ms. Milad's testimony
is properly before us.
We are unable to consider the admissibility of Mr. Dean's
testimony because appellant did not make a timely objection to
it. In order for an objection to be preserved for appeal, "it
must be timely made and the grounds stated with specificity."
Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168
(1986); see Rule 5A:18. To be timely, the objection must be made
at the time the evidence is offered, Ingram v. Commonwealth, 1 Va
App. 335, 341, 338 S.E.2d 657, 660 (1986) (citation omitted), or,
in the case when the objectionable nature of the evidence is not
immediately obvious, at the time "the dangerous drift of the
examination becomes apparent." Weimer v. Commonwealth, 5 Va.
App. 47, 57, 360 S.E.2d 381, 386 (1987). Appellant did not
object to Mr. Dean's testimony about the drug sale on July 10 at
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the time it was offered, despite the obvious fact that this
evidence concerned prior criminal conduct. Although appellant
did object to Mr. Dean's testimony in his motion to set aside the
verdict, this objection came too late to preserve it for appeal.
See Carter v. Nelms, 204 Va. 338, 343, 131 S.E.2d 401, 404
(1963) (holding that objection to evidence first raised in a
motion to set aside the verdict "clearly . . . was too late").
In addition, we cannot consider the admissibility of the
certificate of analysis because it was never admitted into
evidence. Although the certificate of analysis was marked as
Commonwealth's exhibit one and authenticated by Ms. Milad, it was
neither moved into evidence by the Commonwealth's attorney nor
admitted into evidence by the trial court.
Next, we consider appellant's contention that the trial
court erred when it admitted Ms. Milad's testimony that the
substance purchased from him on July 10 was cocaine. He argues
that her testimony was inadmissible because it was evidence of a
prior crime that was neither connected with the offense charged
nor relevant to any element or fact in issue at trial. Although
we agree that Ms. Milad's testimony was erroneously admitted, we
also conclude that this error was harmless.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
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Generally, evidence of other crimes or bad acts committed by
the accused is inadmissible to prove that the accused committed
or likely committed the particular crime charged. See Rodriguez
v. Commonwealth, 249 Va. 203, 206, 454 S.E.2d 725, 727 (1995)
(citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d
802, 805 (1970)). However, exceptions to this general rule of
exclusion are well established. See Morton v. Commonwealth, 227
Va. 216, 222, 315 S.E.2d 224, 228, cert. denied, 469 U.S. 862,
105 S. Ct. 198, 83 L.Ed.2d 130 (1984).
In order for evidence that the accused has
committed other crimes to be admissible, it
need only be relevant to prove a material
fact or issue, and its relevance must
outweigh the prejudice inherent in proving
that an accused has committed other crimes.
Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229,
234, aff'd en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993)
(citing Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609,
616, cert. denied, 498 U.S. 908, 111 S. Ct. 281, 112 L.Ed.2d 235
(1990)). Evidence of prior drug related conduct is relevant to
prove an element of a drug related charge only if "there has been
. . . [a] showing of an intimate relation or connection between
the prior conduct and an element of the crime charged." Wilson,
16 Va. App. at 222, 429 S.E.2d at 234.
We hold that the trial court abused its discretion when it
admitted Ms. Milad's testimony that the substance purchased from
appellant on July 10 was cocaine. The trial court admitted Ms.
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Milad's testimony regarding the drug sale on July 10 for two
purposes: (1) to prove appellant's intent and (2) to show a
potential relationship between appellant and Mr. Dean. Admission
of Ms. Milad's testimony for both of these purposes was
erroneous.
First, the trial court erred when it concluded that the
evidence regarding the drug sale on July 10 was relevant to
appellant's intent in the charged offense. The two transactions
occurred ten days apart and involved entirely different
substances. The sale on July 10 was not sufficiently "related in
time and nature to the charged offense so that the fact finder
could reasonably infer that the latter act follows from or was
related to the former." Jones v. Commonwealth, 18 Va. App. 329,
332, 443 S.E.2d 820, 821-22 (1994).
In addition, the trial court erred when it admitted evidence
of the prior drug sale for the purpose of proving "a potential
relationship" between appellant and Mr. Dean. The evidence of
the drug sale on July 10 was relevant to whether or not appellant
and Mr. Dean previously engaged in a seller-buyer relationship.
However, the trial court erred when it concluded that the
existence of this prior relationship was a "material" issue.
Evidence is admissible if it is both relevant
and material. "[E]vidence is relevant if it
tends to establish the proposition for which
it is offered." Evidence is material if it
relates to a matter properly at issue.
Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436,
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441 (1987). In a prosecution for distributing an imitation
controlled substance, the Commonwealth has the burden of proving
(1) that a defendant intentionally distributed a substance and
(2) that this substance was an imitation controlled substance.
See Code § 18.2-248(A). Whether or not appellant and Mr. Dean
had a prior relationship involving the sale of illegal drugs was
purely collateral to the charge that appellant sold an imitation
controlled substance on July 20, 1995.
Although the trial court erroneously admitted Ms. Milad's
testimony, we also hold that this error was 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." 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 jury's fact finding function, that had the error not
occurred, the verdict would have been the same." Id.
Based on our review of the record, we cannot say that the
erroneous admission of Ms. Milad's testimony affected either the
jury's finding of guilt or its determination of appellant's
sentence. First, even without Ms. Milad's testimony, the
evidence that appellant distributed an imitation controlled
substance on July 20 was overwhelming. In addition, the
exclusion of Ms. Milad's testimony would not have changed the
jury's sentence because Ms. Milad's testimony merely corroborated
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Mr. Dean's testimony, to which appellant did not object, that the
substance appellant sold on July 10 was cocaine.
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III.
SUFFICIENCY OF THE EVIDENCE
We disagree with appellant's argument that the evidence was
insufficient to support his conviction. The evidence proved that
appellant called Mr. Dean on July 20 and negotiated the sale of
sixty-two grams of a substance that he represented was crack
cocaine for $1,900. Prior to meeting with Mr. Dean at the
appointed time and place to complete the sale, appellant had
arranged for the placement of the imitation crack cocaine in a
soft drink cup nearby. When Mr. Dean arrived, appellant directed
him to take the cup's contents in exchange for the $1,900. After
Mr. Dean recovered the cup, he discovered that it contained
macadamia nuts packaged to look like crack cocaine. Both Mr.
Dean and Officer Toney testified that drug dealers attempting to
sell imitation crack cocaine frequently use macadamia nuts
because of their similar appearance to the real drug. A
laboratory analysis of the macadamia nuts established that they
were not a controlled substance. Based on this evidence, we
cannot say that the jury's conclusion that appellant distributed
an imitation controlled substance on July 20 was either plainly
wrong or without evidentiary support. Cf. Werres v.
Commonwealth, 19 Va. App. 744, 748-49, 454 S.E.2d 36, 38-39
(1995).
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For the foregoing reasons, we affirm the conviction of
distribution of an imitation controlled substance in violation of
Code § 18.2-248.
Affirmed.
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