Cooper v. Commonwealth

BUMGARDNER, Judge.

Patrick Sean Cooper appeals his conviction for possession of an imitation controlled substance with the intent to distribute it. He argues that the trial court erred in admitting other crimes evidence and that the evidence was insufficient to prove he intended to distribute the substance. Concluding that the evidence was properly admitted during his bench trial and that the evidence was sufficient to sustain the conviction, we affirm.

On appeal, we view the evidence in the light most favorable to the Commonwealth, granting all reasonable inferences fairly deducible from it. See Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997). In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, see Cirios v. Commonwealth, 7 Va.App. 292, 295, 373 S.E.2d 164, 165 (1988), and not substitute our judgment for that of the fact finder. See Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The trial court’s ruling will not be disturbed on appeal unless plainly wrong or without evidence to support it. See George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991), cert. denied, 503 U.S. 973, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992); Smith v. Commonwealth, 17 Va.App. 68, 71, 435 S.E.2d 414, 416 (1993). Finally, the credibility of the witnesses and the weight to be accorded their testimony are matters solely for the fact finder who can accept or reject the testimony in whole or in part. See Bridgeman v. Commonwealth, 3 Va.App. 523, 528, 351 S.E.2d 598, 601 (1986).

Alexandria Police Officer Ballenger arrested the defendant on an outstanding warrant and found five individually packaged rocks of fake crack cocaine when searching him. The officer asked if the substance was “demo” which is slang for fake crack cocaine. The defendant replied, “[y]ou know it.” Officer Ballenger testified that the individually wrapped substance resembled crack cocaine in every respect, and was more consistent with distribution than with personal use. He also testified that there was no reason for an individual “to intentionally purchase fake crack cocaine.”

Over objection, a state trooper testified that approximately two months earlier he made an undercover purchase from the defendant of what turned out to be fake cocaine. He was attempting to purchase crack cocaine from the defendant who gave him two packages apparently containing crack but which tested negative for cocaine. The imitation substance and the certificate of analysis from the earlier sale were admitted into evidence.

The defendant testified that a friend had shown him the fake cocaine and handed it to him just as the police arrived. He was left holding it as his friend walked away, so he put it in his pocket in order not to draw attention to himself. He denied possessing it with intent to distribute it.

The defendant contends that the trial court erred in admitting testimony of the prior sale of imitation cocaine. We disagree. Generally, evidence that the accused committed other crimes is inadmissible to prove guilt of the crime for which the accused is on trial, though the other crimes are of the same nature as the one charged in the indictment. See Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). However, the exceptions to the general rule are as well established as the rule itself. See Morton v. Commonwealth, 227 Va. 216, 222, 315 S.E.2d 224, 228, cert. denied, 469 U.S. 862, 105 S.Ct. 198, 83 L.Ed.2d 130 (1984). A recognized exception to the general rule is admitting the evidence to prove intent. See Charles E. Friend, The Law of Evidence in Virginia § 12-15 (4th ed.1993).

When the Commonwealth uses intent as the basis to admit evidence of prior offenses, a clear nexus must exist between intent and the charge at hand. The nexus must be greater than the basic recitation that intent is an element of the offense because intent is an element of any offense. “To conclude otherwise is to allow the exception in Kirkpatrick to swallow the general rule.” Hill v. Commonwealth, 17 Va.App. 480, 486, 438 S.E.2d 296, 300 (1993). Intent must be genuinely at issue. See Blaylock v. Commonwealth, 26 Va.App. 579, 496 S.E.2d 97 (1998).

In this case, intent and the charge did have the required connection. The only issue was whether the defendant intended to distribute the substance. If he did not so intend, his possession was innocuous. The item itself was not contraband; it was not a crime to possess it.

Guill v. Commonwealth, 255 Va. 134, 140, 495 S.E.2d 489, 492 (1998), held that when relying on the intent exception, a logical connection must exist between the earlier offense and the one being tried before the probative value can outweigh the prejudice. The logical connection also exists in this case. If there is no reason to possess except to distribute and if the defendant has distributed when he previously possessed, it is logical to deduce that the defendant intended to distribute when he possessed this time.

Officer Ballenger testified he never knew anybody to purchase fake crack cocaine intentionally. This Court acknowledged in Werres v. Commonwealth, 19 Va.App. 744, 749, 454 S.E.2d 36, 39 (1995), “by its nature, an imitation controlled substance has little or no use other than its commercial value in being misrepresented and sold as a controlled substance.” Accordingly, it is proper to reason that anyone who possessed fake crack cocaine intended to sell it. The evidence that the defendant sold fake crack when he previously possessed it logically supports both the major premise as stated in Werres and the conclusion that the Commonwealth urges. The evidence of the defendant’s prior possession strengthens the correctness of the premise that all who possess fake crack do so with the intent to sell the substance. It strengthens the accuracy of the conclusion drawn from it, that the defendant possessed with the intent to sell.

Not only was the evidence admissible to show intent, but also it was admissible under at least two other exceptions to the rule forbidding admission of other crimes evidence. See Friend, supra. The evidence of the defendant’s prior conduct showed his motive for possessing a substance for which no use exists except to misrepresent its true nature and sell it as a controlled substance. The evidence also rebutted the defendant’s testimony that a friend had just handed him the substance, and he was innocently looking at it when the police arrived.

In weighing the prejudice of the evidence versus its probative value as required by Guill, the prejudice stemming from distributing an imitation substance is much less than that arising from prior possession of an illegal substance. Knowledge a defendant possessed illegal drugs can inflame a fact finder into misusing the evidence. The volatility is lower when the evidence does not involve illegal drugs. It is less likely that the trier of fact will misuse the evidence and convict simply because the defendant has a propensity for wrong doing. The legitimate probative value of the other crimes evidence outweighs the incidental prejudice in this case. See Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988), cert. denied, 490 U.S. 1009, 109 S.Ct. 1649, 104 L.Ed.2d 163 (1989).

The evidence was sufficient to find the defendant intended to distribute the fake substance when he was found in possession of it. In addition to the prior sale by him, the evidence shows that he knew the true nature of the substance and that “demo” was used for sale. Imitation cocaine had no real value other than to be sold as a controlled substance. Finally, the defendant’s explanation was not credible. When a fact finder concludes a defendant’s testimony is incredible, it can infer the defendant lied to conceal his guilt. See Speight v. Commonwealth, 4 Va.App. 83, 88, 354 S.E.2d 95, 98 (1987).

Concluding that the trial court did not err, we affirm the conviction.

Affirmed.