Walker v. Commonwealth

PRESENT: All the Justices

JARVON LAVELL WALKER
OPINION BY
v. Record No. 140747 JUSTICE WILLIAM C. MIMS
April 16, 2015
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether four separate charges

of selling, giving, or distributing a controlled substance were

permissibly joined for trial under Rules 3A:6(b) and 3A:10(c).

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Derrick Walker was an informant working with the Southside

Drug Task Force. He identified Jarvon Lavell Walker as a drug

dealer. 1 Jarvon was previously known to Derrick but they had

not spoken for some time.

On April 11, 2012 Derrick contacted Jarvon and arranged to

buy a gram of crack cocaine. At Jarvon’s suggestion, Derrick

met him at a store in South Hill and bought 0.961 gram of crack

cocaine for $50.

On April 13, 2012 Derrick again contacted Jarvon to buy

crack cocaine. Jarvon again suggested they meet at the same

store where he had sold Derrick crack cocaine two days earlier.

He later changed the location to a trailer park in South Hill.

1
Derrick and Jarvon are not related.
1
Derrick met Jarvon there and bought 0.845 gram of crack cocaine

for $50.

On April 19, 2012 Derrick again contacted Jarvon to buy

crack cocaine. Jarvon suggested they meet at a second trailer

park in South Hill. Derrick met Jarvon there and bought 0.603

gram of crack cocaine for $70.

On April 24, 2012 Derrick again contacted Jarvon to buy

crack cocaine. Jarvon suggested they meet at a trailer park in

Mecklenburg County. Derrick met Jarvon there and bought 0.773

gram of crack cocaine for $70.

Each of the four transactions was overseen and recorded by

task force personnel. Subsequent analysis by the Department of

Forensic Sciences confirmed the quantity and nature of the

substances Derrick had bought in each of the transactions.

A grand jury later indicted Jarvon on four separate counts

of selling, giving, or distributing a Schedule I or II

controlled substance, in violation of Code § 18.2-248,

following two or more prior convictions for substantially

similar offenses. He thereafter moved to sever the indictments

and be tried in four separate jury trials, arguing that the

charged offenses were not part of a common scheme or plan. He

also argued that he would be prejudiced if all four charges

were tried in a single proceeding because a jury might convict

2
him on all four even if only one was proved. After a hearing,

the circuit court denied the motion.

At the subsequent trial, the jury found Jarvon guilty on

all four counts. The court sentenced him to six years’

imprisonment on each count and three years’ post-release

supervision under Code § 19.2-295.2.

In an appeal to the Court of Appeals, Jarvon again argued

that the four offenses were not part of a common scheme or

plan. The Court of Appeals determined that the offenses did

constitute a common plan within the meaning of Rule 3A:6(b).

The court noted that “the term ‘common plan’ described crimes

that are related to one another for the purpose of

accomplishing a particular goal.” Walker v. Commonwealth,

Record No. 1051-13-2, slip op. at 6 (Mar. 25, 2014) (quoting

Scott v. Commonwealth, 274 Va. 636, 646, 651 S.E.2d 630, 635

(2007)). It observed that each sale followed a similar

pattern: Jarvon waited for Derrick to contact him about buying

crack cocaine; Jarvon set a location for the sale; each sale

was for approximately one gram; and all sales took place in or

near South Hill in Mecklenburg County. Id.

The Court of Appeals also noted that although expert

opinion testimony established the local market price for crack

cocaine was $100 per gram, Jarvon only charged $50 for 0.961

3
gram in the first sale. 2 From this evidence, the Court of

Appeals inferred that Jarvon had provided a discount price to

“create a return customer,” id. at 6, which was “a ‘plan that

tied the offenses together and demonstrated that the object of

each offense was to contribute to the achievement of a goal

that was not obtainable by the commission of any of the

individual offenses.’” Id. at 8-9 (quoting Spence v.

Commonwealth, 12 Va. App. 1040, 1044, 407 S.E.2d 916, 918

(1991) (internal alteration omitted)). Accordingly, it

concluded that joinder was permissible under Rule 3A:6(b).

The Court of Appeals then determined that justice did not

require severing the charges for the purposes of Rule 3A:10(c).

It opined that the evidence of multiple sales was admissible

because it helped establish both that Jarvon had the requisite

intent to sell, give, or distribute the controlled substance

and that he knew the nature and character of the substance he

was selling. The court also opined that the probative value of

admitting such evidence outweighed any prejudicial effect.

Finally, it noted both that much of the evidence would have

been the same if the circuit court had ordered separate trials

and that the decision to join the charges served interests of

2
Jarvon also sold 0.845 gram for $50 in the second sale,
but trial testimony established that its quality was poor.
Quality improved for the third and fourth sales and the price
then was consistent with market price. Id. at 6-7.

4
judicial economy. Id. at 9-11. Accordingly, it concluded that

the circuit court did not abuse its discretion by permitting

all four charges to be tried together.

We awarded Walker this appeal.

II. ANALYSIS

In his first assignment of error, Walker asserts that the

Court of Appeals erred by determining that the four offenses

constituted a common plan for the purposes of Rule 3A:6(b).

Citing Spence, he argues that separate sales of a controlled

substance on different occasions are insufficient to constitute

a common scheme or plan.

The circuit court’s decision to join offenses for trial is

reviewed for abuse of discretion. Scott, 274 Va. at 644, 651

S.E.2d at 634. However, interpretations of the Rules of this

Court by the Court of Appeals, including the meaning of the

term “common plan” as used in Rule 3A:6(b), are questions of

law we review de novo. LaCava v. Commonwealth, 283 Va. 465,

471, 722 S.E.2d 838, 840 (2012). 3

3
Rule 3A:6(b) permits joinder of offenses that are based
on (1) “the same act or transaction,” (2) multiple acts or
transactions “that are connected”, or (3) multiple acts that
“constitute parts of a common scheme or plan.” In Scott, we
determined that “common scheme” and “common plan” are separate
and distinct, but not mutually exclusive. 274 Va. at 645-46,
651 S.E.2d at 635. This appeal is limited solely to
considering joinder of offenses based on common plan.

5
 In Spence, the defendant sold cocaine to an undercover

narcotics investigator in four transactions between February 3

and May 10, 1989, in or near Whitesville in Accomack County.

12 Va. App. at 1041-42, 407 S.E.2d at 916-917. The Court of

Appeals considered whether the four charges were properly

joined for trial under Rule 3A:6(b). It considered each of the

three prongs of Rule 3A:6(b). It concluded that the charges

fulfilled none of them. Id. at 1042-45, 407 S.E.2d at 917-18.

Specifically addressing the common scheme or plan prong,

the Court of Appeals noted that “separate sales of a controlled

substance by the same individual on different occasions do not

constitute a common scheme or plan.” Id. at 1044, 40 S.E.2d at

918. Rather,

a common scheme or plan is present only if
the “relationship among offenses is
dependent upon the existence of a plan that
ties the offenses together and demonstrates
that the objective of each offense was to
contribute to the achievement of a goal not
obtainable by the commission of any of the
individual offenses.”

Id. (quoting Godwin v. Commonwealth, 6 Va. App. 118, 122, 367

S.E.2d 520, 522 (1988) (internal alteration omitted)).

The Court of Appeals concluded that

[n]othing inherent in any of the four
crimes herein charged would separate them
from numerous offenses of possession and
distribution of drugs that happen every
day. There is no evidence of a plan tying

6
 these four drug sales together or showing
that each offense was intended to assist in
accomplishing a goal other than that
achieved by each individual offense. The
four offenses merely show that Spence has
the propensity to commit the crime and this
inference has been held to be error because
it reverses the presumption of innocence.
Lewis v. Commonwealth, 225 Va. 497, 502,
303 S.E.2d 890, 893 (1983).

Id. at 1044-45, 407 S.E.2d at 918.

The only material distinction between Spence and this case

is that the four transactions took place over a span of 13

weeks in Spence and over a span of 13 days here. While we

indicated in Satcher v. Commonwealth, 244 Va. 220, 299, 421

S.E.2d 821, 827 (1992), that offenses may be considered parts

of a common scheme or plan when they are “closely connected in

time, place, and means of commission,” the two crimes charged

in that case occurred “within a few yards and about one-half

hour of each other,” and shared the same modus operandi.

We are not persuaded that the general vicinity of South

Hill and a span of 13 days sufficiently connects the four

transactions here any more than the general vicinity of

Whitesville and a span of 13 weeks did in Spence. Similarly,

we are not persuaded that the pattern of the transactions

identified by the Court of Appeals in this case was

sufficiently specific to establish an unusual and unifying

modus operandi. Cf. Yellardy v. Commonwealth, 38 Va. App. 19,

7
22-25, 561 S.E.2d 739, 741-42 (2002) (affirming the conviction

in a single trial of a defendant charged with two robberies

occurring four days apart in the same park where each victim

was an unaccompanied male threatened with a rock and

subsequently accused by the defendant of having made a sexual

proposition).

We likewise are not persuaded that the evidence

established that Jarvon had a particular “goal not obtainable

by the commission of any of the individual offenses.” Spence,

12 Va. App. at 1044, 407 S.E.2d at 918 (internal quotation

marks omitted). The object of selling drugs for money is to

make money selling drugs. The seller’s goal is to make a

profit. Return customers are more profitable: the seller

incurs lower operating costs selling to them than if he or she

must spend the time and effort to attract new ones. Therefore,

the cultivation of return customers is intrinsic to the goal of

profiting from the sale of drugs.

The Court of Appeals also sought to distinguish Spence on

the ground that it was decided before our 2007 decision in

Scott. In that case we defined the term “common scheme or

plan” as used in Rule 3A:6(b) for the first time. 274 Va. at

644, 651 S.E.2d at 635. The Court of Appeals determined that

earlier cases, including Spence, were decided using an analysis

blending common scheme and common plan that Scott made obsolete

8
and they therefore were no longer useful in ascertaining

whether offenses formed “a common plan exclusive of a common

scheme.” Walker, slip op. at 8. We disagree.

In Scott, we held that “the term ‘common plan’ describes

crimes that are related to one another for the purpose of

accomplishing a particular goal.” 274 Va. at 646, 651 S.E.2d

at 635. This definition echoes rather than contradicts the

language in Spence that offenses constituting part of a common

plan must “contribute to the achievement of a goal not

obtainable by the commission of any of the individual

offenses.” 12 Va. App. at 1044, 407 S.E.2d at 918 (internal

quotation marks omitted). Accordingly, Scott does not overrule

or limit Spence. The similarity of these statements encourages

rather than discourages reaching similar results on the similar

facts present in both cases.

Nevertheless, we appreciate that the term “common plan” is

amorphous and may merit additional clarification. But see

United States v. Jawara, 474 F.3d 565, 574 (9th Cir. 2007)

(opining that “common scheme” and “common plan” are “self

defining”). We perceive the similarities between Rule 3A:6(b)

and Federal Rule of Criminal Procedure 8(a), which permits

joinder of multiple offenses when they “are of the same or

similar character, or are based on the same act or transaction,

or are connected with or constitute parts of a common scheme or

9
plan.” Federal “courts generally permit joinder [under the

federal rule’s common scheme or plan test] where the counts

grow out of related transactions. Stated another way, [federal

courts] ask whether commission of one of the offenses either

depended upon or necessarily led to the commission of the other

. . . .” Jawara, 474 F.3d at 574 (internal quotation marks,

citations, and alterations omitted); see also United States v.

Dominguez, 226 F.3d 1235, 1238-39 (11th Cir. 2000) (approving

joinder of offenses when proof of one provides the motive and

necessity for the other).

Although the joinder analysis is different from the

analysis of whether evidence of other crimes, wrongs, or acts

is admissible under Rule 2:404(b), the principles supporting

the evidentiary analysis helpfully illustrate our joinder

analysis in this case. In the Rule 2:404(b) context, a common

plan includes “‘such a concurrence of common features that the

various acts are naturally to be explained as caused by a

general plan of which they are the individual manifestations.’”

McWhorter v. Commonwealth, 191 Va. 857, 870-71, 63 S.E.2d 20,

26 (1951) (quoting 2 Wigmore on Evidence § 304, at 202 (3d ed.

1940)).

Thus, a “common plan” “connotes a series of acts done with

a relatively specific goal or outcome in mind.” David P.

Leonard, The New Wigmore: A Treatise on Evidence § 9.2.2, at

10
572 (2009). 4 This goal or outcome exists when the constituent

offenses occur sequentially or interdependently to advance some

common, extrinsic objective. For example, a defendant may

break into a bank president’s home, steal the keys to the bank,

and then burgle it. All of the associated offenses are

committed sequentially to further the principal objective of

taking the money from the bank. Id. § 9.2.1(a), at 562.

Similarly, a defendant may be a partner in a business and

murder the other partners to acquire control of it. Each

murder is a separate prerequisite to acquiring control of the

business, so each offense is an act in furtherance of that

objective. Id. § 9.2.1(b), at 567-68.

By contrast, this case has none of the features of a

common plan because there is no evidence from which to infer “a

relatively specific goal or outcome.” Id. § 9.2.2, at 572.

The four individual drug transactions are not “related to one

another for the purpose of accomplishing a particular goal.”

Scott, 274 Va. at 646, 651 S.E.2d at 635. The key factor, as

4
Similarly, a “common scheme” “connotes a particular act
done multiple times in a similar way.” Leonard, supra, §
9.2.2, at 572. If the similarity between the offenses is
sufficiently distinctive, this is consistent with our
definition in Scott that “[t]he term ‘common scheme’ describes
crimes that share features idiosyncratic in character, which
permit an inference that each individual offense was committed
by the same person or persons as part of a pattern of criminal
activity involving certain identified crimes.” 274 Va. at 645,
651 S.E.2d at 635.

11
noted in Spence and the examples above, is that the goal

furthered by the offenses must be extrinsic to at least one of

them. Profiting from the sale of drugs, including cultivating

return customers, is intrinsic to the offense of selling drugs. 5

Accordingly, we conclude that the Court of Appeals erred

by ruling that the four offenses in this case were part of a

common plan. That is the sole basis upon which the court

determined that they fulfilled the requirements of Rule 3A:6(b)

for joinder under Rule 3A:10(c). Because the record contains

no evidence from which to infer a common plan, the requirements

of Rule 3A:6(b) are not met. We need not reach Jarvon’s second

assignment of error, in which he asserts that the court erred

by ruling that justice did not require separate trials.

III. CONCLUSION

For the foregoing reasons, we will reverse the judgment of

the Court of Appeals and remand the case for further

proceedings consistent with this opinion.

Reversed and remanded.

5
There was, for example, nothing from which to infer that
Jarvon had a separate, extrinsic goal of concealing the
proceeds of his sales through money laundering, in violation of
Code § 18.2-246.3, or using them to further racketeering
activity proscribed by Chapter 13 of Title 18.2.

12
JUSTICE KELSEY, with whom JUSTICE McCLANAHAN joins, dissenting.

My colleagues have concluded that Walker’s four drug

charges should have been tried separately. The governing

standard of appellate review, however, requires that we reverse

only if the trial judge abused his discretion in coming to a

different conclusion. I am unwilling to say that he did.

I.

Under Rule 3A:10(c), a trial court may join separate

criminal charges in a consolidated trial “if justice does not

require separate trials” and “the offenses meet the

requirements of Rule 3A:6(b).” Rule 3A:6(b) authorizes a

single indictment or information to charge separate offenses

“if the offenses are based on the same act or transaction, or

on two or more acts or transactions that are connected or

constitute parts of a common scheme or plan.” See generally

Scott v. Commonwealth, 274 Va. 636, 644-46, 651 S.E.2d 630,

634-35 (2007).

The legal principle is simple and highly flexible.

Joinder is permissible if it is just and if the charges could

have been joined in the initial charging instrument. Rule

3A:10(c) and Rule 3A:6(b) use discretionary concepts incapable

of being reduced to precise metrics. I point this out not to

criticize the Rules, but to praise them. No two drug-related

cases are exactly alike, as every trial judge knows,

13
particularly those who have heard scores of such cases.

Factual dissimilarities often exist, and thus, the legal

standard for joinder must be supple enough to handle the broad

spectrum of drug-related cases — not just the handful of cases

that make their way into the appellate reports.

For this reason, we have repeatedly emphasized that

whether criminal charges “should be tried separately or

together is a matter resting within the sound discretion of the

trial court.” Fincher v. Commonwealth, 212 Va. 552, 553,

186 S.E.2d 75, 76 (1972) (per curiam) (citing Bryant v.

Commonwealth, 189 Va. 310, 315, 53 S.E.2d 54, 56 (1949)). 1

“Hence, we adopt the rule of discretion for determining

questions of consolidation.” Id. Absent a showing that the

trial court committed an abuse of discretion, we have no

authority to reverse a joinder decision in a criminal case.

The exercise of discretion presupposes “that, for some

decisions, conscientious jurists could reach different

conclusions based on exactly the same facts — yet still remain

entirely reasonable.” Thomas v. Commonwealth, 62 Va. App. 104,

111, 742 S.E.2d 403, 407 (2013) (citation and internal

quotation marks omitted). In this context, the trial court

1
See also Scott, 274 Va. at 644, 651 S.E.2d at 634;
Commonwealth v. Minor, 267 Va. 166, 172, 591 S.E.2d 61, 65
(2004); Commonwealth v. Smith, 263 Va. 13, 16, 557 S.E.2d 223,
225 (2002); Cheng v. Commonwealth, 240 Va. 26, 33-34, 393
S.E.2d 599, 603 (1990).

14
“has a range of choice, and its decision will not be disturbed

as long as it stays within that range and is not influenced by

any mistake of law.” Lawlor v. Commonwealth, 285 Va. 187, 212-

13, 738 S.E.2d 847, 861 (2013) (alteration and internal

quotation marks omitted). “This bell-shaped curve of

reasonability governing our appellate review rests on the

venerable belief that the judge closest to the contest is the

judge best able to discern where the equities lie.” Thomas, 62

Va. App. at 111-12, 742 S.E.2d at 407 (quoting Hamad v. Hamad,

61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013)) (internal

quotation marks omitted).

It necessarily follows that an abuse of discretion cannot

be shown merely because “[r]easonable trial judges and even

some members of this Court, had they been sitting as trial

judges in this case,” might have reached a different conclusion

than the one under review. Coe v. Commonwealth, 231 Va. 83,

88, 340 S.E.2d 820, 823 (1986). 2 “‘Only when reasonable jurists

could not differ can we say an abuse of discretion has

occurred.’” Grattan v. Commonwealth, 278 Va. 602, 620, 685

S.E.2d 634, 644 (2009) (quoting in parenthetical Thomas v.

Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743

2
See also AME Fin. Corp. v. Kiritsis, 281 Va. 384, 393,
707 S.E.2d 820, 824 (2011) (“In evaluating whether a trial
court abused its discretion, ‘we do not substitute our judgment
for that of the trial court.’” (quoting Beck v. Commonwealth,
253 Va. 373, 385, 484 S.E.2d 898, 906 (1997))).

15
(2005)). If “reasonable trial judges could properly disagree,”

it matters not that “some members of this Court” would have

made a different discretionary decision. Noll v. Rahal, 219

Va. 795, 801, 250 S.E.2d 741, 745 (1979).

II.

I concede that a common plan for purposes of Rule 3A:6(b)

cannot be applied at the highest levels of abstraction. Every

drug dealer probably plans on selling as many drugs to as many

addicts as he can. Expanding the common plan definition to

this level of generality would render the joinder test

unreasonably broad. But I think it no less unreasonable to

tighten the joinder standard to the point where no drug dealer

can have a common plan to sell drugs. Burglars, sex offenders,

thieves, counterfeiters, and all manner of other criminals fall

within the parameters of Rule 3A:6(b). I see no reason why

drug dealers should receive a special exemption from its reach.

Navigating between the overly broad and overly narrow

interpretations of common plan requires trial courts to focus

on the distinct, limiting features of each case. A trial court

should consider, for example, whether there was a single buyer

or multiple buyers, whether the time frame of the transactions

was short or long, whether the sales territory was the same or

different for all transactions, whether one or more types of

16
drugs were sold, and whether there was a continuing or episodic

relationship between the buyer and seller.

Even with these guidelines, it may well be true that the

common-plan standard of Rule 3A:6(b) requires a considerable

amount of judicial line-drawing to keep it from being applied

too broadly or too narrowly. As Justice Holmes once said,

however, we need not be “troubled by the question where to draw

the line. That is the question in pretty much everything worth

arguing in the law.” Irwin v. Gavit, 268 U.S. 161, 168 (1925).

Nor should we abandon the exercise simply because it “depends

upon differences of degree. The whole law does so as soon as

it is civilized.” Daniels v. Williams, 474 U.S. 327, 334-35

(1986) (quoting LeRoy Fibre Co. v. Chicago, Milwaukee & St.

Paul Ry., 232 U.S. 340, 354 (1914) (Holmes, J., concurring in

part)).

III.

In this case, the evidence at trial 3 showed that Walker, on

four separate occasions over the course of thirteen days, sold

3
See United States v. Cardwell, 433 F.3d 378, 385 & n.1
(4th Cir. 2005) (recognizing that an appellate court reviewing
a trial court’s joinder decision must look both “to the
allegations in the indictment and the evidence produced at
trial” and noting that this “rule has the benefit of a built-in
type of harmlessness review; if the indictment does not allege
a sufficient relationship for [federal joinder] purposes, but
the evidence at trial reveals that such a relationship exists,
it is difficult to see how the defendant could ever be
prejudiced by the technical misjoinder”).

17
cocaine to the same police informant in and around the South

Hill area of Mecklenburg County. These four transactions were

not isolated, random, or unplanned encounters between a drug

dealer and an addict. They were instead — a reasonable jurist

could conclude — evidence of a common plan by Walker to groom a

specific buyer to participate in an ongoing buyer-seller

relationship, in a short amount of time, in the same sales

territory, with the same drug.

In making his decision, the experienced trial judge in

this case no doubt considered the pretrial proffer of Walker’s

counsel, stating:

Your Honor, as part of his defense, [Walker]
anticipate[s] that he may want to present a
defense that perhaps the substance that was
transferred was not, in fact, cocaine, or that
there was no drug transaction at all.

J.A. at 28. That proffer proved to be prophetic in light of

the closing argument to the jury by Walker’s counsel:

We don’t know for certain that what he was
setting up was any kind of transaction for
cocaine. Remember, it must be cocaine. It
can’t be marijuana, it can’t be ChapStick, it
can’t be bubblegum or anything else. What’s in
his hand, what goes back and forth, if there is
anything going back and forth, must be cocaine.

Id. at 412.

Walker’s defense strategy underscores the reasonableness

of the trial court’s decision to try the charges together.

Walker wanted the jury to believe that the Commonwealth could

18
not prove that what he handed to the informant was “in fact,

cocaine,” id. at 28, and that it could have been, for all we

know, “ChapStick” or “bubblegum or anything else,” id. at 412.

It is true he hoped to convince the jury that the informant was

lying and that no drug transaction occurred at all. But Walker

also sought to imply that, if the jury believed something was

sold, he had no knowledge it was cocaine and no intent to

distribute it.

This subtle argument implicated the Commonwealth’s burden

of proving that Walker “was aware of the presence and character

of the drugs,” Andrews v. Commonwealth, 216 Va. 179, 182,

217 S.E.2d 812, 814 (1975), and that he possessed them with the

“intent” to distribute, Code § 18.2-248(A). His ChapStick and

bubblegum strategy might have had better success if the four

charges were tried to four separate juries, with each jury

aware of only one offense. As Walker correctly points out, the

law of evidence does not permit the admission of evidence of

other crimes merely to show propensity — that is, once a drug

dealer, always a drug dealer.

But Walker’s anti-propensity generalization breaks down

when knowledge and intent are at issue, as they certainly were

in this case. Evidence of other crimes is permissible if it

helps prove “knowledge” and “intent.” See Va. R. Evid.

2:404(b). See generally Kirkpatrick v. Commonwealth, 211 Va.

19
269, 272, 176 S.E.2d 802, 805 (1970). In this respect,

Virginia law follows an “inclusionary approach to the uncharged

misconduct doctrine” by admitting evidence of other crimes “if

relevant, for any purpose other than to show a mere propensity

or disposition on the part of the defendant to commit the

crime.” Kent Sinclair et al., Virginia Evidentiary

Foundations § 6.4[A], at 165 (1998). 4

For this reason, drug deals shortly before and shortly

after the one in question may be admissible to prove that the

defendant knew the white substance in his hand was an illegal

drug (not ChapStick or bubblegum) and that he intended to sell

it. 5 As many courts have held, knowledge and intent must be

proved in every drug-related case, and evidence of other

closely related crimes can be used to prove it. 6

4
It is thus fair to say that, “[u]ltimately, the question
whether to admit evidence of other crimes involves the same
considerations as any other circumstantial evidence.” Spencer
v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616 (1990).
5
When a non-propensity basis exists for admitting
evidence, it does not matter if the evidence involves events
preceding or subsequent to the date of the alleged crime. See
generally Scott v. Commonwealth, 228 Va. 519, 526-27, 323
S.E.2d 572, 577 (1984) (accepting that, when logically and
legally relevant, factual circumstances “which followed the
commission of the crime on trial, as well as those which
preceded it” should be admissible “even though they may show
the defendant guilty of other offenses”).
6
See, e.g., Barlow v. Commonwealth, 26 Va. App. 421, 428,
494 S.E.2d 901, 904 (1998); Wilkins v. Commonwealth, 18 Va.
App. 293, 299, 443 S.E.2d 440, 444 (1994); Rodriguez v.
Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d 419, 422

20
 I acknowledge, but am unmoved by, Walker’s concern that

the four offenses, when known by the same jury, might prejudice

his defense. In a sense, “[a]ll evidence tending to prove

guilt is prejudicial,” Powell v. Commonwealth, 267 Va. 107,

141, 590 S.E.2d 537, 558 (2004), at least from the point of

view of the person standing trial. “Virginia law, however,

intervenes only when the alleged prejudice tends to inflame

irrational emotions or leads to illegitimate inferences. And

even then, it becomes a matter of degree.” Thomas, 44 Va. App.

at 758, 607 S.E.2d at 746.

Like the trial court and the unanimous panel of the Court

of Appeals, I find it neither unreasonable nor unjust to

consider all four drug transactions — involving the same buyer,

during a thirteen-day period, concerning the same drug, taking

place in the same sales territory, arising out of an ongoing

relationship — to determine whether Walker knew what he was

(1994); Satterfield v. Commonwealth, 14 Va. App. 630, 637, 420
S.E.2d 228, 232 (1992) (en banc); Rider v. Commonwealth, 8 Va.
App. 595, 599, 383 S.E.2d 25, 27 (1989); Barber v.
Commonwealth, 5 Va. App. 172, 180-81, 360 S.E.2d 888, 892
(1987); accord United States v. Toro, 359 F.3d 879, 884 (7th
Cir. 2004); United States v. Booker, 334 F.3d 406, 411-12 (5th
Cir. 2003); United States v. Maden, 114 F.3d 155, 157 (10th
Cir. 1997); United States v. Jackson, 84 F.3d 1154, 1159 (9th
Cir. 1996); United States v. Ramirez, 894 F.2d 565, 569 (2d
Cir. 1990); United States v. Samuel, 431 F.2d 610, 612 (4th
Cir. 1970); Bell v. United States, 677 A.2d 1044, 1047 (D.C.
1996); State v. Graham, 768 P.2d 259, 262 (Kan. 1989); State v.
Montford, 529 S.E.2d 247, 252 (N.C. Ct. App. 2000); State v.
King, 561 S.E.2d 640, 645-46 (S.C. Ct. App. 2002); Howard v.
State, 713 S.W.2d 414, 416 (Tex. App. 1986).

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selling and intended to sell it. To be sure, I see little

justice in allowing Walker to have the “evidence sanitized,”

Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 577

(1984) (internal quotation marks omitted), in an effort to

improve his chances of convincing one or more of four different

juries of his ChapStick and bubblegum defense.

I respectfully dissent.

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