dissenting.
I respectfully dissent and would affirm Morris’ conviction for possession of cocaine with the intent to distribute.
On September 15, 1989, Investigator W. B. Upshaw and Detective E. L. Peck of the Spotsylvania Sheriffs Department were executing a search warrant for cocaine at a trailer occupied by Albert Bensusan, Denise Light and their children. Bensusan and‘Light were arrested for possession of cocaine with the intent to distribute. Upshaw saw a red car approaching on the driveway leading to the trailer. The car stopped approximately fifteen yards from the home. Upshaw saw a white object thrown from the passenger side window of the car, but he did not see which occupant of the car threw the object. Upshaw motioned for the vehicle to move forward and the driver complied. The car was a 1986 Pontiac Fiero, a two-seated sports car with a very small passenger compartment. Morris was driving the car, which was registered to his parents. The passenger in the car was Terence Bright, who was also arrested for possession of cocaine with the intent to distribute.
Upshaw directed Peck to search the area where he saw the white object land. Peck discovered a white paper napkin and thirty-two small packages of crack cocaine.
When Upshaw first looked in the car, he found a knife sticking out of the glove compartment. The car was subsequently impounded and searched. One additional package of cocaine, similar to those located near the napkin, was found under the floor mat on the passenger side.
At trial, the Commonwealth offered a series of photographs which were found in Bensusan’s home. These photographs showed: (1) Bensusan, a child, and Morris; (2) Bright, a child and Morris; (3) two pictures of Bright alone; (4) a child and Morris; and (5) Morris alone. Each of these photographs also showed the red Fiero. These photographs were admitted over Morris’ objection that the photographs had no probative value.
*142In closing argument, the prosecutor mentioned the photographs and stated, “[T]hey had been to the residence before. You are entitled to infer that Morris and Bright were Bensusan’s supplier of cocaine, and that they were making a delivery of cocaine when they had the bad fortune —.” The defense objected, stating, “I don’t think any inference can be made of that.” The court overruled the objection. Morris did not request a cautionary instruction or move for a mistrial.
This Court has stated:
“The admission of photographs is a matter resting within the sound discretion of a trial court,” and the. court’s decision will be upheld unless an abuse of discretion is shown. But it is always essential to the right to introduce a photograph in evidence that it have a relevant and material bearing upon some matter in controversy at the trial, and the party offering such evidence should give proof of its relevancy to the issue before the jury.
Cook v. Commonwealth, 7 Va. App. 225, 231, 372 S.E.2d 780, 784 (1988)(citations omitted).
At trial, Morris objected to the admission of the photographs on the ground that they had no “probative value in this case.” “Evidence is relevant in the trial of a case if it has any tendency to establish a fact which is properly at issue. When the probative value of evidence sought to be admitted outweighs any prejudicial effect, and no other objection is pertinent, the evidence is admissible.” Wise v. Commonwealth, 6 Va. App. 178, 187-88, 367 S.E.2d 197, 202-03 (1988) (citation omitted). “The test establishing relevance is not whether the proposed evidence conclusively proves a fact, but whether it has any tendency to establish a fact at issue.” Id. at 188, 367 S.E.2d at 203.
Here, Morris, the passenger in his car and the two adult occupants of the house being searched were charged with possession of cocaine with the intent to distribute. “Where an offense consists of an act combined with a particular intent, proof of intent is essential to the conviction. Because direct proof of intent is often impossible, it must be shown by circumstantial evidence.” Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988)(citation omitted). The majority holds that photographic *143evidence showing a prior, albeit legal, relationship between Morris and his alleged customers has no probative value. Under the facts of this case, prior acquaintance is a circumstance that can legitimately be considered in determining intent. The photographs of Morris and Bensusan proved that the two were acquainted. When taken with the other evidence in the case, including the evidence that Morris was approaching Bensusan’s home when he was observed by police and the evidence that an occupant of the car discarded thirty-two packages of cocaine at this time, the jury could infer that Morris jointly possessed the cocaine with the intent to distribute.
The majority asserts that the Commonwealth was not required to prove to whom Morris intended to distribute the cocaine. That is correct, but the Commonwealth is not precluded from presenting evidence which tends to establish the identity of the intended distributee.
The probative value outweighed any prejudicial effect of the photographs. The photographs do not depict Morris engaged in any illegal activity. Therefore, the trial court did not abuse its discretion in admitting the photographs.
Morris also asserts that the court erred in overruling his objection to the prosecutor’s statement to the jury during closing argument that “[y]ou are entitled to infer that Morris and Bright were Bensusan’s supplier of cocaine.” However, the Supreme Court “has repeatedly held that errors assigned because of a prosecutor’s improper comments or conduct during closing argument will not be considered on appeal unless the accused timely moved for a cautionary instruction or for a mistrial.” Martinez v. Commonwealth, 241 Va. 557, 559 n.2, 403 S.E.2d 358, 359 n.2 (1991). A timely motion for a mistrial or a cautionary instruction is required to preserve the issue for appeal even if an objection was properly made to the conduct or comments and overruled by the trial judge. See Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990). Here, Morris did not move for such an instruction or for a mistrial, so the argument is barred.
For the foregoing reasons, I would affirm.