Dunbar v. Commonwealth

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."

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 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)

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(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).

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 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

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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

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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

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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

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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.

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