Dunbar v. Commonwealth

512 S.E.2d 823, 29 Va. App. 387, 1999 Va. App. LEXIS 192
CourtCourt of Appeals of Virginia
DecidedMarch 30, 1999
Docket2029972
StatusPublished
Cited by31 cases

This text of 512 S.E.2d 823 (Dunbar v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunbar v. Commonwealth, 512 S.E.2d 823, 29 Va. App. 387, 1999 Va. App. LEXIS 192 (Va. Ct. App. 1999).

Opinion

ANNUNZIATA, Judge.

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 *389 “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.”

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 *390 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) (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 *391 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).

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 ...

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Bluebook (online)
512 S.E.2d 823, 29 Va. App. 387, 1999 Va. App. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunbar-v-commonwealth-vactapp-1999.