Rodriguez v. Com., 0357-92-4

• Decision Date: 26 April 1994
• Docket Number: No. 0357-92-4,0357-92-4
• Citation: 18 Va.App. 277,443 S.E.2d 419
• Parties: Edwin RODRIGUEZ v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 419

443 S.E.2d 419

18 Va.App. 277

Edwin RODRIGUEZ v. COMMONWEALTH of Virginia.

Record No. 0357-92-4.

Court of Appeals of Virginia.

April 26, 1994.

[18 Va.App. 278] Dominique F. Poirier, Asst. Public Defender (Louise M. DiMatteo, Sr. Asst. Public Defender of Fairfax County, on briefs), for appellant.

Richard B. Smith, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and BAKER, BARROW, BENTON, COLEMAN, WILLIS, ELDER, BRAY and FITZPATRICK, JJ.

UPON A HEARING EN BANC

COLEMAN, Judge.

Edwin Rodriguez was convicted by a jury of possession of cocaine with the intent to distribute. In this appeal, reviewed en banc on our motion pursuant to Code § 17-116.02(D), we hold that evidence that Rodriguez had recently engaged in selling cocaine over a period of time and had purchased cocaine for resale the day before his arrest was proof of a course of conduct that was sufficiently related to the charged offense that it was relevant to prove that Rodriguez intended to distribute the cocaine he possessed. Because the probative value of that evidence outweighs any incidental prejudice, we uphold the trial court's ruling that the evidence was admissible.

As to a second evidentiary issue raised on appeal, a majority of the Court holds that Rodriguez did not timely or specifically object to an expert witness's testimony as to a legal issue or, as it is frequently referred to, "an ultimate issue of fact." Because Rodriguez has not demonstrated good cause for having failed to make a timely objection and because consideration of the issue is not necessary to correct a manifest injustice, Rule 5A:18 bars our consideration of the issue for the first time on appeal. Accordingly, we affirm Rodriguez's conviction.

The police executed a search warrant at the apartment of Edwardo Rodriguez, where the defendant, Edwin Rodriguez, was known to reside. The defendant was the only person present at the apartment. In the search of a bedroom, the officers found in a closet and dresser several packages containing 160 grams of cocaine, a black nylon bag containing a set of scales and a pay stub bearing the defendant's name, and $160 in cash. The officers arrested the defendant and charged him with possession of cocaine with the intent to distribute. After his arrest, the defendant told a police officer that he did not want to "take the fall" alone, that he had been selling cocaine for Edwardo Rodriguez for about three months, that he had gone to New York the day before and had purchased four and one-half ounces of cocaine for $2,600, and that he owned the black nylon bag and scales in it, which were for weighing cocaine. He acknowledged that he had twice delivered cocaine to a person who was a police informant, who in turn gave it to an undercover police investigator in Rodriguez's presence. The defendant also told the officer that in exchange for his participation in the drug distribution ring, Edwardo Rodriguez paid his rent and gave him cocaine to smoke.

I. OTHER CRIMES

The defendant contends that the evidence of two prior drug sales between a police informant and an undercover agent at which he was present was inadmissible and prejudicial.

The police officer testified that the defendant admitted to buying and selling cocaine on two prior occasions, admitted to going to New York the day before to buy drugs, and admitted to his participation in the ongoing drug transactions. We hold that the evidence of the defendant's participation in the two previous sales, when considered with his admissions of an ongoing drug distribution scheme, was relevant and admissible to prove that he intended to distribute the drugs seized from his possession.

The rule regarding evidence of other crimes and its exceptions are relatively well settled; the application of the rule, however, is often troublesome. The rule, subject to certain exceptions, excludes evidence of other crimes committed by a defendant, Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970), particularly evidence of unrelated drug sales. See Donahue v. Commonwealth, 225 Va. 145, 154, 300 S.E.2d 768, 772-73 (1983); Eccles v. Commonwealth, 214 Va. 20, 22, 197 S.E.2d 332, 333 (1973); Boyd v. Commonwealth, 213 Va. 52, 53, 189 S.E.2d 359, 359-60 (1972). See also Boyd v. Commonwealth, 156 Va. 934, 943-44, 157 S.E. 546, 549 (1931); Sutphin v. Commonwealth, 1 Va.App. 241, 245, 337 S.E.2d 897, 899 (1985). Evidence of other crimes or other bad acts is excluded to protect an accused "against unfair prejudice resulting from the consideration of prior criminal conduct in determining guilt." Sutphin, 1 Va.App. at 245, 337 S.E.2d at 899 (citing Fleenor v. Commonwealth, 200 Va. 270, 274-75, 105 S.E.2d 160, 163 (1958)). Unfair prejudice occurs if the fact finder is permitted to infer that, because an accused has previously committed a crime--even a similar crime to that charged--the accused has a propensity to commit crime, or a particular type of crime and, therefore, committed the crime for which he or she is being tried. Wilson v. Commonwealth, 16 Va.App. 213, 218, 429 S.E.2d 229, 233, aff'd en banc, --- Va.App. ----, 436 S.E.2d 193 (1993).

The many exceptions to the rule are as well established as the rule itself. Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. Specifically, other crimes evidence is admissible where it shows the conduct and feeling of an accused toward his victim or establishes their prior relationship; where it proves motive or opportunity to commit the crime charged; where it proves an element of the crime charged; where it proves intent or guilty knowledge on the part of the accused or negates good faith or the possibility of mistake or accident; where it proves the identity of the accused as the one who committed the crime charged by showing criminal acts so distinct as to indicate a modus operandi; and where it demonstrates a common scheme or plan of which the crime charged is part. See Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805; Boyd, 156 Va. at 944, 157 S.E. at 549-50; Sutphin, 1 Va.App. at 245-46, 337 S.E.2d at 899-900. Thus, in order to be admissible under one of the exceptions, evidence of other crimes must tend to prove a material fact and its probative value "must outweigh the prejudice inherent in proving that an accused has committed other crimes." Wilson, 16 Va.App. at 220, 429 S.E.2d at 234. Evidence that one accused of possessing a controlled substance with intent to distribute it has, on a prior, recent occasion sold a controlled substance, is not, standing alone, admissible to prove that on a later occasion, the accused possessed the same kind of substance with intent to distribute it. Id. at 222, 429 S.E.2d at 235. Evidence of a prior drug sale has probative value only when it is related to and tends to prove a material fact or issue of the charged offense. See id.

Evidence that the defendant had recently engaged in buying and selling drugs and had gone to New York to buy drugs for resale was admissible because the jury could reasonably infer from it that the defendant had acquired the cocaine when in New York the day before in order to resell it in Virginia. His practice of traveling to New York, buying cocaine, returning to Virginia and selling it was a continuing enterprise manifesting a singular scheme or plan. The last New York purchase was so recent as to be almost contemporaneous with his possession of the cocaine found in his apartment. From the sequence of events, the jury reasonably could have inferred from the defendant's admissions after his arrest that he was explaining that the cocaine found in his apartment was part of that which he had purchased the day before in New York and that he intended to sell it, as was his practice. Thus, the evidence that he had recently purchased and sold cocaine on two prior occasions, although evidence of other crimes, was highly relevant because it tended to confirm that he was involved in a continuing enterprise of buying and selling cocaine and, therefore, that he possessed this cocaine intending to distribute it.

The fact that the defendant previously had sold cocaine on two recent occasions would not be admissible without further evidence linking the sales to the cocaine which he possessed on this occasion. See Wilson v. Commonwealth, 16 Va.App. at 222, 429 S.E.2d at 235. His statement to the police describing his ongoing enterprise of buying and selling cocaine provides the link between the two sales and the possession of the cocaine with which he was charged.

The fact that evidence of other crimes is relevant does not end the inquiry as to whether it was admissible. In order for relevant evidence, which has prejudicial aspects, to be admissible, its probative value must outweigh its prejudice. See Woodson v. Commonwealth, 16 Va.App. 539, 540, 431 S.E.2d 82, 83 (1993). By its very nature, evidence of other crimes is prejudicial; however, where its probative value is significant, the evidence is admissible even though prejudicial influences may be present. See Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. The prejudicial effect of the evidence of other crimes was limited by the instructions of the court to the jury. The trial court instructed the jury that it could consider the evidence of the other offenses "only as evidence of the defendant's intent and for no other purpose." The instruction limited the jury's use of the evidence to that which was permissible and prohibited its use for any other purpose. The instruction, thus, diminished the likelihood of any impermissible use of the evidence and, in turn, minimized any undue prejudice from it. See Woodson, 16 Va.App. at 540, 431 S.E.2d at 83.

The probative value of evidence that the defendant recently engaged in a course of buying and selling cocaine was significant to prove that he intended to sell the cocaine on this occasion. Intent is a subjective state of mind, and proof...