*1 5A:20(e) authorities by citing of Rule provisions the sidestep of deprive appellee the would therefore reply in his brief appellant’s to meaningfully respond opportunity underlying purpose argument, thereby eviscerating Rule. authority opening in his brief presented he no
Because in denying the trial court erred support of his argument strike, appeal, issue on his motion to Jeter has waived this it. we not address need
III. Conclusion reasons, concluding not err in For these trial court did chain of proper had established Commonwealth And, failed cite authorities in because Jeter custody. argument his that the trial court opening support his brief to strike, has this issue denying erred in his motion to he waived appeal. Accordingly, we affirm his conviction distribu- tion of cocaine.
Affirmed.
607S.E.2d THOMAS, Raymond Brian Sr. Virginia.
COMMONWEALTH Record No. 2889-03-4. Virginia. Appeals
Court Jan. *5 Whitestone, Brent, (Laura Leibowitz; P. A. Merril
Steven Fairfax, brief), appellant. Merril, P.C., on Young & *6 (Jerry W. Attorney General Witmer, Assistant A. Steven General, brief), appellee. for Attorney Kilgore, KELSEY, JJ. BENTON, and BUMGARDNER Present: KELSEY, Judge. posses- for conviction challenges his Thomas
Raymond § 18.2-308.2. in violation of Code by a felon of a firearm sion arguments one of his waived all that Thomas but findWe question the one them at trial. On raising properly not in the court erred review —whether appellate preserved by an described plastic baggies into evidence admitting distribution —we officer as indicative expert narcotics admitting this its discretion court did not abuse hold the Thomas’s conviction. We thus affirm evidence.
I. most favorable” “light the evidence in the review We in the trial court. party the prevailing Hudson, S.E.2d Commonwealth Va. ‘discard the evidence this court must appeal “On Commonwealth, and of the in conflict with that of the accused evidence favorable as true all the credible regard be drawn there and all Commonwealth fair inferences ” Parks v. from..’ (1980) (citation emphasis omitted and S.E.2d original). Thom- stopped and Sean Bauer Darren DeCoster
Officers stop, During the traffic violation. suspected on a as’s vehicle to search the vehicle. consent asked for and received DeCoster testified, vehicle,” the officer “Immediately upon entering from the vehicle” marijuana coming the “odor of he smelled vehicle, the entire marijuana throughout “residue of and found console, floorboard, in the center seats, on the in the in the trunk.” found some eventually also DeCoster noticed that rear seat cushion was “a little ajar.” bit He looked under cushion and found a fully loaded, testified, semi-automatic “At that handgun. point,” he “for I safety purposes, officer had some non-verbal communi- cation that I use with my partner.” then DeCoster drew his Thomas, weapon placed who standing was outside the vehicle, time,” under arrest. “At point Thomas later admitted, they “he knew found gun.” had firearm, questioned
When about Thomas said he had “shooting been with a friend.” His fingerprints might be on stated, gun, gun because he had “shot the in the past.” Thomas then said had shooting ranges he visited turned away him was a “because he convicted felon.” He and however, friend, his range found a person where “the didn’t do job, their hence checking him to if [sic] see he was a *7 convicted felon.”
Officer Bauer transported police Thomas’s car the to sta- tion. vehicle, As he was exiting “grabbed the Bauer the driver’s side door handle to close the vehicle” and “the door portion handle came off” in his hand. Bauer then a saw hidden in compartment the “door frame or well” door ordinari- ly up by piece covered a of the door secured to the frame. In that compartment, he a zip-lock found medium-sized bag containing zip-lock plastic 46 smaller baggies. trial,
At the Commonwealth introduced into evidence Thom- prior as’s convictions for and burglary possession marijuana of testified, with intent to distribute. Officer DeCoster without objection, vehicle, during his search of the he “found the marijuana vehicle, of residue the throughout entire the seats, floorboard, on the in the center and eventually console found some the trunk.” When the Commonwealth asked however, DeCoster 46 plastic baggies, about the contraband,” objected. drug replied. “It’s the It prosecutor explained why Thomas, alleged dealer, drug might an simulta- neously possess firearm.
After out that Thomas pointing object “did not to the residue,” testimony marijuana judge the trial about overruled potential has the clearly “It baggies. objection Ms counsel, Thomas’s client,” stated to judge the prejudice your The evidence it’s not relevant.” prepared say I’m not “but rea- judge the “drug dealing paraphernalia,” appeared to be time” as soned, “at the same allegedly possessed that Thomas the firearm. to Thomas cautionary offered a instruction judge
The trial any offense charged “not with making clear that he was case,” thus, tMs in tMs drug dealing relating firearm deciding purposes should considered be I it to the give now or can give jury “I can it to the charge. no asked that later,” said. Thomas’s counsel judge trial when it could be until the end of given such instruction be instructions.” included with the “rest baggies, of the 46 plastic asked about the relevance When drug expert testified as a interdiction Officer DeCoster distribution, narcotics baggies illegal were “indicative trade, drug explained, “[depending In the he packaging.” was, put it or weighed what the would be measured small, it.” easily lock to more distribute zip baggie inside the as baggies of the photograph The Commonwealth offered ExMbit 2. Thomas re- baggies Exhibit and the actual as time, court overruled it. objection newed Ms each and the trial in Ms defense. Thomas admit- Thomas took the stand own that, marijuana and had been past, ted he “distributed” marijuana with intent to distribute. possession convicted of Thomas claimed Ms respect plastic baggies, With *8 that, Beyond to in.” put jewelry “mom uses them said, for the nor did baggies, he did not know of other use of the they up compartment he know how ended a Mdden driver’s side door of Ms car. trial, Thomas’s judge
At the end of the the trial asked offered. cautionary previously instruction counsel about instruction,” cautionary “I I tMnk a decided don’t we need harm than good.” “I think it do more replied, might counsel omitting, to the jury trial court the final instructions gave The the evi- any cautionary concerning as instruction requested, plastic dence the 46 baggies or Officer DeCoster’s testimo- ny about them. The convicted possession Thomas of of a by firearm a convicted felon in violation § of Code 18.2-308.2.
II. On appeal, Thomas challenges his conviction on four grounds. First, he contends that the trial court by erred “admitting marijuana evidence of seeds and zip lock bags.” Second, he contends the court erred by to sua failing sponte intervene to cut off the prosecutor’s argument seeking to connect the drug-related to Third, evidence the firearm. Thomas asserts court erred by “permitting the jury” to rely upon drug-related support of the firearm charge. Thomas’s final contention asserts the court erred not giving cautionary instruction. Appeal
A. Waiver Of All But One Issue On precondition As a appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court preserve the appeal. issue on just any objection Not will do. It must be both specific and timely the trial judge —so would particular know the point being made time to do See, something about it. e.g., Commonwealth, Riner v. 296, 325, (2004) Va. 601 S.E.2d (holding that appellant waived challenge double-tier hearsay by failing specifical ly object to trial court’s incomplete as to ruling only one of the tiers).1 two Mort., 134, 138, Props.,
1. See also West Alex. Inc. v. First Va. (1980) ("On 267 S.E.2d appeal, though taking the same court, general position appellant may rely as in the trial an reasons which could have been but were not raised for the benefit of court.”); Commonwealth, 559, 563, the lower Va.App. Widdifield (2004) (en banc) (holding "specific” objection review); argument preserves appellate or at trial Correll v. 311, 324, (2004) Va.App. raised, (holding argument that the "same specifici- must have been with ty”); Edwards v. Va.App. (2003) (en banc) ("A general argument or an abstract reference to issue.”). preserve the law is not sufficient to an *9 case, of Thomas’s Rule 5A:18 bars all but one In this the trial appeal. argument His first contentions —that marijuana of seeds erroneously admitted evidence court severed, objected Thomas as baggies be plastic —must The but not to the seeds. baggies, introduction of the mari testimony about the also did not address the objection or the odor of the entire vehicle” juana “throughout residue marijuana the vehicle. permeating object prosecutor’s failed to to the
Thomas likewise link the firearm asserting logical a between closing argument of distribution in Thomas’s vehicle and the various indicia (i.e., Thomas’s with Thomas and his vehicle associated both in his drugs past; prior of “distributed” having admission conviction; marijuana possession-with-intent-to-distribute vehicle; presence odor from his marijuana coming vehicle; the entire and the 46 marijuana throughout residue baggies compartment).2 hidden a secret door offer of a caution Finally, by refusing the trial court’s own, not one of his ary by proposing instruction that issue. See waived claim error associated with 1, Commonwealth, 126, n. Va.App. Lewis v. 596 S.E.2d (2004) 542, a n. 1 have been entitled to (“Appellant may However, instruction. we do not address this cautionary appellant because never aspect question presented trial.”). cautionary a instruction at requested absolute, Rule 5A:18 is If the ends of however. rule, an it justice exception general may warrant we set so, however, “extraordinary aside. do situations” We a prove miscarriage where the defendant can substantial contesting allegedly improper argument, prosecutor’s 2. When “timely cautionary required for a mistrial or a instruction is motion preserve appeal objection properly the issue for even if an was made judge.” improperly overruled the trial the conduct or comments and Commonwealth, 283, 287, Va.App. 416 S.E.2d Morris v. 127, 148, (1992) (en banc); see also Schmitt (2001). exception appears to be no 200-01 "There Virginia application Bennett v. Common law to the strict of this rule.” wealth, Va.App. Bazemore v. justice. 218-19, 42 Va.App. (2004) (en banc) (citations omitted). 609-10 *10 “The record ‘must affirmatively show that a miscarriage justice occurred, has not that a miscarriage might have oc- ” Copeland curred.’ 424, 442, 42 Va.App. (2004) (citations omitted); S.E.2d see also Mi- chaels v. 601, 608, Va.App. (2000) that (observing defendant must show “she was for
convicted conduct that was not a criminal offense” or “an occur”). element of the offense did not argues Thomas that ends-of-justice exception ap plies to his appeal assertion on that the trial court erred not giving cautionary a issue, instruction. On we discern no reason to suspend the procedural default of Rule 5A:18. Experienced trial lawyers instructions, know that cautionary worded, even when perfectly sometimes highlight problematic and, thus, as Thomas’s case, counsel concluded in this “do more harm than good.” reason, For this “counsel may wish to avoid such an instruction for sound tactical reasons.” Distribs., Commercial Inc. v. Blankenship, 382, 394, (1990) (citation omitted). To compel a trial judge give cautionary a instruction —in the face express defense counsel’s request that he not do so—would compromise the court’s objectivity and interfere with the of trial prerogative counsel to the detriment of the adversarial system. The ends-of-justice therefore, exception, cannot be invoked under these circumstances. Admissibility Op Baggies
B. The 46 Plastic And Testimony Officer DeCoster’s About Their Drug Use In The Trade objected Thomas to the evidence of plastic the 46 baggies found in the compartment hidden of his vehicle and Officer DeCoster’s expert testimony that they were “indicative of illegal distribution, narcotics packaging.” The trial court over- objection, ruled the finding provide evidence relevant hypothesis why possess Thomas would a loaded handgun (i) also hidden the same appeal, vehicle. On objects logical evidence, relevance of the drug-related (ii) claims it prior-bad-acts violates the and other-crimes doc- (in) trines, it unduly prejudicial contends was in any event. disagree We with each of these assertions.
(i) Logical Relevance Drug-Related Evidence Of
Two principles govern threshold appellate review of evidentiary First, decisions. we do not such review deci sions de novo. “Given the ‘broad discretion’ of a trial judge matters, over evidentiary we apply deferential abuse-of- discretion review.” Seaton v. Common appellate standard of wealth, (2004) (citation 42 Va.App. omitted). standard, else, This if means nothing the trial judge’s “ruling will not be reversed simply because an appel late disagrees.” court Indiscretion about Henry J. Friendly, Discretion, L. Emory J. Only when reason *11 jurists able could not differ can we an say abuse of discretion has occurred.
Second, every fact, “however
or insignifi
remote
cant, that
tends to establish the
or
probability
improbability of
fact
issue is relevant.” Va. Elec. & Power
v. Dungee,
Co.
235, 260,
(1999) (citation
258
164, 179
omitted).3
Va.
520 S.E.2d
“Put
way,
another
evidence has relevance if it ‘tends to cast
Seaton,
any
light’
any
point.”
752,
material
McKoy v. North
U.S.
(1990) (citations
brackets
Guided these into evidence the 46 admitting not abuse its discretion expert testimony or about plastic baggies Officer DeCoster’s previ trade. Thomas had been illegal their use intent to distrib possessing marijuana with ously convicted At in the distributing drugs past. ute. He admitted to arrest, “throughout found marijuana residue was time his necessary fact to determine the existence "It is often for the trier of *12 is, fact —from crime —that an ‘ultimate’ or ‘elemental’ an element the ‘evidentiary’ Ulster or more or ‘basic’ facts.” the existence of one 2213, 2224, Allen, 140, 156, County 99 S.Ct. 60 Court v. 442 U.S. (1979) (citations omitted). evidentiary An or basic fact L.Ed.2d 777 beyond when it is the sole proven need be a reasonable doubt Morton v. Common- supporting an element of the crime. evidence however, 583, "If, wealth, 6, 10, (1991). Va.App. 408 S.E.2d 585 13 required prove of the crime tends to the element other evidence also greater weight be no probative of the inferred fact need proven, be the admitted for consideration required of other evidence than that fact, long proves the element all of the evidence the trier of so as Id.; v. beyond McQuinn see also a reasonable doubt.” 704, (1994). 418, 424, Va.App. 707 19
755 by Thomas. The odor operated the entire vehicle” owned and immediately marijuana coming appar- from the vehicle was commonly drug used in trade plastic baggies, ent. The 46 purposes, compart- for hidden distribution were secret it say, ment of the driver’s side door. was Suffice it unlikely entitled to find that Thomas’s mother stored her in a supply empty jewelry compartment hidden bags marijuana-infested Thomas’s car.5 individually collectively, Both these facts tended show just prosecutor what still en- argued was —that gaged marijuana. in the distribution of A exists logical basis making point involving Many this a case weapons. acknowledged “relationship courts have the commonsense be- tween the distribution of controlled substances ... and the possession and use of v. dangerous weapons.” Com- Logan monwealth, (1994) (en 437, 445, 364, Va.App. 19 369 banc); 704, 5, v. Christian 33 714 n. Va.App. 477, (2000) (en banc). 536 482 n. S.E.2d 5 Guns are “tools of the trade” in the underground drug world. United States White, (4th Cir.1989). 427, v. F.2d 875 433 dispositive,
While alone linking a defendant to may distribution be as one considered factor determin- ing he may whether have motive to possess had a firearm. 445, See 452 Logan, Va.App. at S.E.2d at On motive, question of a rational “drug-related evidence” has bearing charge possession” of a of “firearm because of the commonly accepted correlation between the two. United White, (8th Cir.2004).6 865, States v. 356 F.3d The trial may "self-serving explanation 5. A factfinder disbelieve a defendant’s as ” 'lying guilt.’ a mere at effort to conceal his Haskins Common- wealth, 402, (2004); Va.App. also S.E.2d see Com- Duncan, monwealth v. White, (8th Cir.2004) 6. See also United States v. F.3d ("The drugs possession fact that were found in White’s bears some possession relevance to issue of whether White was in of a fire- arm.”); (2d ("[F]ire- Cir.2003) Reyes, United States v. F.3d needles, objects, sharp hypodermic arms and blades such as razor traffickers.”); [drug] are regularly 'tools of the trade’ found on narcotics *13 756 into therefore, admitting
court, did not abuse its discretion expert or DeCoster’s baggies Officer plastic the 46 evidence if weight, drug in the trade. What their use testimony about in the given placed been when these facts should have any, for question case is a other evidence the of all of the context court, the to decide. jury, the not Doctrines (ii) Prior-Badr-Acts Other-Crimes that the admission with Thomas disagree alsoWe (he has doctrine prior-bad-acts conflicts with the this evidence time) before, thus, or the other-crimes he did it this done it (he crime, thus, committed anoth one he committed principle use er). prohibiting rule the of the same applications Both are In this con prosecutions. in criminal evidence propensity attempt prove not to mere text, evidence does drug-related “motive” for the possible a instead addresses propensity —it Smith, 292 v. a firearm. United States possess defendant to Cir.2002) (1st drug-related 90, (finding evidence F.3d 98 “a by providing hurdle” relevancy activity “easily clears v. gun”); United States possessing compelling motive Cir.2001) (11th Thomas, 1028, (admitting drug- 242 1033 F.3d firearm, of the knowing possession “to prove related Fuller, v. F.2d States character”); United Cir.1989) (8th “drug paraphernalia” admission of (holding firearm). a possess to motive evidence relevant words, of the possession In Thomas’s other simultaneous, but bad act nor prior neither a baggies was (9th Cir.1991) ("Firearms Butcher, F.2d v. United States dealing because of trade’ of narcotics 'tools of the are known omitted)); (citation States United dangers in that line of work.” inherent Cir.1987) (“Because (1st Cresta, weapons, tend v. 825 F.2d protect promote the narcotics prove the defendants’ intent admissible.”); States v. Mari they United conspiracy, are relevant and (6th Cir.1981) ("Because no, guns tend F.2d conspiracy, protect narcotics promote and prove intent to Orlando’s Rule admissible under is relevant and of the firearms the evidence Cir.1976) ("[D]eal (2d Wiener, 401.”); F.2d United States of the trade premises as tools keep firearms on their in narcotics ers scales, bags, cutting glassine they keep same extent as almost to the equipment."). equipment and other narcotics unrelated, of the just crime. It was factual circumstance the rule policies underlying simply crime scene.7 “The are *14 in a crimi- when some offenses committed inapplicable single nal become ‘other acts’ the is episode because defendant v. of his actions.” United States for all indicted less than Butcher, (citation (9th Cir.1991) omitted) 811, 926 816 F.2d that a of fact from (holding “rational trier could infer the scales, presence of plastic bags, pay the and the and owe firearm); that the possessed nearby sheets” defendant the Simon, United States v. (8th Cir.1985) 524, F.2d 527 767 (propensity evidentiary “admitting rules not the preclude do drug-related involving evidence” at a trial a “firearms charge”).8
(ii) Balancing Prejudicial Qualities Potential and Probative reasons,
For similar unpersuaded by we are argument Thomas’s the evidence of the hidden baggies should have been as unduly prejudicial. excluded In a sense, all “evidence tending guilt prejudicial” to is prove —at least from the of of point view the person standing trial. Commonwealth, Powell v. 107, 141, 587, 267 Va. 590 S.E.2d Virginia Supreme explained: As the Court has "Where a course of interwoven, consisting criminal conduct is continuous and series of a of crimes, perpetrator related right the has no to have the evidence deny jury knowledge 'sanitized' so as to the all but of the immediate crime for which he on is trial. The fact-finder entitled is to all the facts, including and relevant connected those which followed the com- trial, it; preceded mission the crime on as well as those which even though they may guilty show defendant other offenses.” Scott v. Commonwealth, 519, 526-27, 572, (1984). Va. 323 S.E.2d law, 8. We these Virginia find authorities with consistent settled which "inclusionaiy uncharged approach” follows an doc- misconduct relevant, by admitting any trine purpose such evidence "if other than show a propensity disposition mere or part of the Sinclair, Kearfott, Joseph defendant to commit crime.” Kent C. Sheridan, Imwinkelried, Paul Virginia Evidentiary F. & Edward J. 6.4[A], (1998) § (emphasis original). Foundations at 165 While crime," an tending prove "element of motive ais "circumstance Commonwealth, 387, 397, guilt” of the accused. Cantrell v. 22, (1985). by 329 S.E.2d Virginia It has been never treated law as synonym propensity predisposition for mere or evidence. law, however, Virginia only intervenes when the alleged tends inflame irrational emotions or leads prejudice then, illegitimate inferences. And even it becomes a matter if the may only “Relevant evidence be excluded degree. outweighs probative its val- prejudicial effect of evidence v. ue.” Goins Va. (1996): also
114, see Winston Va. (2004) 21, (holding 39-40 can is “probative outweighed be excluded when its value effect”). to trial prejudicial generally judges its We defer us, subject they, participate on this unlike first person because on the process acquire competencies evidentiary subject rarely by reading that we can briefs duplicate merely Marshall, generally Dandridge v. See transcripts. (2004) this (recognizing Va. *15 judge). decision “rests within the sound discretion” of the trial case, theory In of the case prosecutor’s suggested this the in and engaged marijuana pos- Thomas was still distribution that support sessed the firearm of endeavor. This asser- tion, however, on the of the hidden rely solely did not evidence also the drug baggies. prosecutor The stressed for marijua- of conviction prior possessing evidence Thomas’s distribute, the na with the to Thomas’s concession on intent marijuana past, he the the stand that had distributed vehicle, the entire presence marijuana throughout residue marijuana compart- and from the interior coming the odor to this object the Thomas did not ment of vehicle.9 prosecutor’s arguments. closing evidence or the It in this the trial had determine judge is context added incrementally greater prejudice allegedly whether the that, facts, argues the Asserting even if these same Commonwealth admitting baggies, the error would be harmless trial court erred in given particularly admission that the facts of this Thomas’s under case— they as soon as drew he found hidden firearm knew the officers had 253, 259- weapons. generally Clay v. See their 60, (2001) (adopting federal non-constitutional S.E.2d 731-32 error). holding, determining our we need harmless Given standard for question error. of harmless address by drug baggies magni- the evidence of the was of sufficient balance, held, outright tude to warrant their exclusion. On he caution, it an was not. In exercise of commendable the trial judge sua a sponte offered to instruction. give cautionary it. Concurring Thomas declined with the views of other courts, we find no of discretion under these appellate abuse circumstances.10
III. sum, In hold we that Thomas waived all but one of his appellate specific timely make arguments failing objections trial. preserved appeal, at On the issue he for we hold that trial court did not abuse its discretion admit- ting reasons, the contested evidence. For these we affirm Thomas’s conviction.
Affirmed.
BENTON, Judge, dissenting. Thomas was at trial on an indictment he charging “knowing- ly intentionally possessed] having firearm been after previously convicted Thomas felony.” being was not tried for Yet, a narcotics offense. the trial judge permitted evi- prove dence to propensity engage had the in an uncharged offense of drug distribution. trial,
At
Thomas properly
preserved
appeal
the issue
bad
prior
act
was
inadmissible
show he
*16
had
propensity
the
to commit the
possession
crime for
of a
firearm. He also
of
properly preserved the
whether
issue
such evidence should not
it
have been admitted because was
overly
prejudicial,
Objecting
lacked
value.
probative
See, White,
e.g.,
(holding
"potential
the about “I evidence, attorney trial said Thomas’s of them duction the the discussion about During think this is relevant.” don’t argue intended to indicated that he the objection, prosecutor a reasonable inference drugs find its you that “when attorney Thomas’s dangerous.” somebody can be armed prejudice the outweigh value does not probative “the argued ... for the hear immensely prejudicial because [it is] judge ... car.” The trial the bags there were all these value does evidence, probative that the “find[ing] admitted on as he did argues appeal prejudice.” outweigh “proba- and lacked was “irrelevant” at trial: that the evidence outweighed ... prejudice greatly that “the tive value” and objection was I would hold that the value.” probative tenuous by admitting trial erred judge and that well stated evidence. was inadmissible.
This evidence plainly that evidence jurisprudence our It is well established prove guilt not admissible generally offenses is other trial. See presently is for which a defendant the crime Commonwealth, 124, 142, 314 S.E.2d Stockton v. 227 Va. Commonwealth, 76, 72, v. Moore 371, (1984); Va. Commonwealth, (1981); Eccles v. 822, 278 S.E.2d (1973). 332, This so because 22, is 20, 197 S.E.2d Va. in other crimes an accused implicating “[s]uch may ... confuse the issues offense charged unrelated to the defendant.” prejudice to the and cause undue being tried v. 255 Va. Guill (1998). Minor, 171-72, v. Commonwealth Va. Accord Fleenor (1958) “such evi- (holding that
274-75, unfairly surprises jury, before the confuses the issue dence meet, and tends to prepared is not charge he accused with depravi- his by showing the jury him in minds of prejudice propensity”). criminal ty or
The rationale behind the rule is that
is
evidence
inadmissi
prove
ble which tends to
accused “has a
propen
and,
therefore,
...
sity
commit bad acts
he probably
Wil
committed the bad act with which
charged.”
he stands
son v.
Va.App.
S.E.2d
banc,
rehearing
en
Va.App.
S.E.2d
aff'd
(1993).
if it is alleged
Even
that the evidence is admissible as
rule,
an exception to the
“the legitimate probative value of the
Id.;
Guill,
see
outweigh
evidence must
its
effect.”
prejudicial
Thus,
atVa.
This is such a only evidentiary case. The value of the empty baggies was to suggest an inference that Thomas had the propensity inference, narcotics. distribute On this prosecutor pyramided further inferences that Thomas must have known the gun was the car because the could assume that distributors possess guns. The trial judge’s admission of evidence that empty baggies were found in the car was error because this evidence a speculative allowed inference Thomas had committed or intended to commit an crime, other which had no connection the offense for which he was being tried. “The accused comes to trial to meet the specific charge him, against to vindicate or to explain every charge collateral that may be made in the course of the introduction of Limbaugh evidence.” 383, 391, 140 133, 135 S.E. Simply put, prosecutor sought to lead the jury to draw “the inference that because of a criminal propensity [Thomas] probably committed the crime for which he was being tried.” Fleenor, atVa. 105 S.E.2d at type 163. This speculative inference drawing has long been condemned. State,
It is elsewhere, well settled this that evi- dence which tends to show that an accused has committed of, another crime independent with, and unconnected for which he is on trial is inadmissible. This is upon the principle that such evidence confuses the issue before the
jury, unfairly surprises charge the accused with a he is not *18 meet, him in prepared prejudice to and tends to the minds jury by showing depravity propensity. of the his or criminal Id. at 274-75, 105 S.E.2d at 163. purposes,
Prior acts is admissible for limited bad v. intent, Sutphin to show or motive. example identity, for Commonwealth, 241, 245-46, 897, 1 337 S.E.2d 899 Va.App. (1985) uses). if such evidence is (citing permissible Even (and case, admissible as an to the rule this it was exception by any it “motive” instead of is a rose not-calling “propensity” name), probative “the value of the evidence legitimate other Wilson, 16 prejudicial Va.App. must its effect.” at outweigh Guill, see 220, 233; 139, 255 at 495 at 429 S.E.2d at Va. S.E.2d Indeed, prosecution possess- that “in a for we have ruled distribute, fact that an ing drugs with the intent to occasion, prior has on a where the drugs prior accused sold offense, charged is not shown to have been related to the sale Commonwealth, v. Jones for great potential prejudice.” has (1994). 329, 332, 820, 821 This is so Va.App. 18 443 S.E.2d “[ejvidence suggests because of unrelated sales the accused has a to commit crime propensity Id. Virginia Supreme this nature.” this Court and the “[B]oth rejected the admission of evidence repeatedly Court have prior drug unrelated transactions to show separate with the drugs possession drugs sale of or defendant’s Commonwealth, Cooper v. Va.App. 31 to distribute.” intent v. See Donahue Common- 72, S.E.2d wealth, 768, (1983); 145, 154-56, 300 S.E.2d 773-74 Va. Commonwealth, 20, 21-22, 214 Va. Eccles v. 52-53, Boyd (1973);
332-33 Hill v. (1972); Va.App. 359-60 S.E.2d Wilson, (1993); 480, 485-87, 299-300 conviction 219-23, prior at 233-35. If a at Va.App. narcotics would be with intent to distribute possession possess of or intent prove knowledge inadmissible to empty evidence of the certainly or the then gun baggies, sought draw prosecutor the inferences baggies and here, speculation from them were inadmissible where the to make conclusion is far required greater. this evidence should have been excluded
Beyond prejudice, establishing because of its dubious value probative charge possession Supreme of a firearm. As the Court Guill, noted
“if the circumstances the other have no intimate [of event] fact; if they with the main constitute no link in conne[ct]ion excluded, the chain of evidence ... they ought be because irrelevant; they if they guilt, they are denote other [and] irrelevant, are not they injury, they but do because tendency have a prejudice.” [cause] Walker v. Common- at at (quoting Va. S.E.2d *19 wealth, (1 (1829)). Leigh) Va.
There was no such “intimate connection” here. The evi- empty dence that in baggies merely were found the car jury allowed the a speculative draw inference that Thomas crime, had committed or intended commit another which had no connection to the offense for which he was being tried. Moreover, no at proved any baggies trial of the marijuana Here, contained or other controlled substance. prosecutor offered the as empty baggies evidence and then sought to use the of the in car to discovery baggies support a chain of impermissible involving inferences Thom- previous as’s conviction of distribution. It drug offered the First, argue evidence as a basis to it following: could infer these were in baggies items connected with trade Second, it narcotics. could infer from Thomas’s previous conviction for possession of narcotics that he possessed the baggies Third, as an incident of his trade as a it drug dealer. could speculate drug carry guns dealers as an incident the drug Lastly, trade. it could infer from Thomas’s posses- sion of items of the that Thomas engaged trade was and, therefore, the distribution of drugs knowingly possessed Allowing such a chain of far gun. long speculation, facts, removed from the probative is not evidence. reasons,
For I judge these would hold that the erred Therefore, admitting empty baggies. evidence the I dis- sent.
Richmond. Jan.