McGowan v. Commonwealth

630 S.E.2d 758, 48 Va. App. 333, 2006 Va. App. LEXIS 266
CourtCourt of Appeals of Virginia
DecidedJune 20, 2006
DocketRecord 0412-05-1
StatusPublished
Cited by6 cases

This text of 630 S.E.2d 758 (McGowan 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
McGowan v. Commonwealth, 630 S.E.2d 758, 48 Va. App. 333, 2006 Va. App. LEXIS 266 (Va. Ct. App. 2006).

Opinions

ROBERT J. HUMPHREYS, Judge.

Kyna Chanelle McGowan (McGowan) appeals her jury conviction for distribution of cocaine, in violation of Code § 18.2-248. McGowan argues that the trial court abused its discretion in admitting evidence of a subsequent drug offense. For the following reasons, we disagree, and affirm.

BACKGROUND

“On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the evidence established the following.

On March 4, 2004, James McCoy (McCoy), an undercover agent working with the Hampton Police Department’s Special Investigations Unit, conducted a controlled buy as part of an operation to interdict street-level drug sales.1 McCoy drove to a shopping center that was known to be a high drug area. There, Saroyal Booker (Booker) approached McCoy’s car. Booker asked McCoy if “he was looking,” and McCoy answered “yes.” Booker asked what he needed, and McCoy responded “a 20 rock.” She told him to follow her because her “girl [was] across the street at McDonald’s.”

Upon arriving at the McDonald’s parking lot, McCoy saw Booker approach McGowan, who was sitting on a picnic table. They talked, and McGowan reached into her “bra area” and handed something to Booker.2 McGowan returned to the [337]*337picnic table, and Booker walked to McCoy’s car. Booker gave McCoy two rocks of crack-cocaine in exchange for a twenty-dollar bill. Booker then approached McGowan, and another “transaction” occurred between them. After the exchange, Booker went inside McDonald’s, and McGowan left the picnic area.3

On July 6, 2004, the City of Hampton Grand Jury indicted McGowan for distribution of cocaine, and, on July 13, 2004, Hampton police officers arrested McGowan. Upon McGowan’s arrest, Detective Christine Saunders (“Saunders”) conducted a search incident to arrest. During the search, Saunders found two rocks of crack-cocaine inside of McGowan’s bra.4

Before trial, the Commonwealth filed a motion in limine seeking to introduce the cocaine discovered on McGowan’s person during the search incident to her arrest. The trial judge denied the motion, prohibiting the introduction of the evidence during the Commonwealth’s case-in-chief. However, at the Commonwealth’s request, the judge reserved ruling on the issue of whether the Commonwealth could introduce the evidence in rebuttal in the event McGowan chose to testify.

During McGowan’s jury trial for the charge of distribution of cocaine, McGowan took the stand in her defense. During cross-examination by the Commonwealth, the following exchange took place:

[COMMONWEALTH:] Do you know what crack cocaine is?
[McGOWAN:] No.
[COMMONWEALTH:] On March the 4th, 2004, did you possess crack cocaine?
[MCGOWAN:] No.
[338]*338[COMMONWEALTH:] So you wouldn’t know crack cocaine if you saw it?
[McGOWAN:] I sure wouldn’t.
[COMMONWEALTH:] So when you were arrested on July 13th, 2004, did you have any crack cocaine on your person?
[McGOWAN:] No.

McGowan objected to the last question, arguing that “[i]t goes directly to what the court has already ruled.” However, the trial judge overruled the objection, reasoning that McGowan did not object to the original line of questions concerning her lack of knowledge of crack-cocaine and, thus, opened the door to the other crimes evidence.5 The Commonwealth concluded its cross-examination of McGowan by asking the following:

[COMMONWEALTH:] Ms. McGowan, is it your testimony today that when you were arrested on July 13th, 2004 on the direct indictment for distribution of cocaine that you did not have two individually items—two individually wrapped items which appeared to be crack cocaine in your bra?
[McGOWAN:] No, I did not.

In rebuttal, the Commonwealth called Saunders, the officer who arrested McGowan for the July 13, 2004 incident. When asked whether McGowan had any drugs on her person at the time of her arrest, Saunders stated that, during the search, McGowan “turned her back, reached down into her bra and handed me two items both of which I believed to be crack cocaine.”

The trial judge provided the following limiting instruction, pertaining to McGowan’s cocaine possession on the day of her arrest:

You may consider evidence that the defendant committed an offense other than the offense for which she is on trial only as evidence of the defendant’s intent, opportunity or as [339]*339evidence of the absence of mistake or accident on the part of the defendant in connection with the offense for which she is on trial and for no other purpose.

The jury convicted McGowan of distributing cocaine, in violation of Code § 18.2-248. The trial court sentenced McGowan to five years in prison and imposed a $5,000 fine. This appeal followed.

ANALYSIS

On appeal, McGowan argues that the trial court abused its discretion by admitting “other crimes” evidence. Specifically, McGowan contends that the “other crimes” evidence concerning her July 13 cocaine possession “had little probative value and created an undue risk of prejudice.” Moreover, she argues that the evidence had the substantive effect of implying “to the jury that [she] had a history of drug dealing and a propensity to sell drugs, even though [she] had never been convicted of a drug offense or other felony.” We disagree.

A The Evidence of a Subsequent Possession of Cocaine Was Admissible “Other Crimes” Evidence

Appellate review “of the admissibility of evidence is within the broad discretion of the trial court, and its ruling thereon will not be disturbed on appeal in the absence of an abuse of discretion.” Auer v. Commonwealth, 46 Va.App. 637, 643, 621 S.E.2d 140, 142 (2005).

“Generally, proof tending to show an accused committed other crimes at other times is incompetent and inadmissible for the purpose of showing commission of the particular crime charged.” Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988) (citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)); see Sutphin v. Commonwealth, 1 Va.App. 241, 245, 337 S.E.2d 897, 899 (1985). An exception to the general rule of inadmissibility exists if the evidence “tends to prove any element of the offense charged, even though it also tends to show that the defendant is guilty of another crime.” Goins v. Common[340]*340wealth, 251 Va. 442, 462, 470 S.E.2d 114, 127 (1996).

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Related

McGowan v. Com.
652 S.E.2d 103 (Supreme Court of Virginia, 2007)
Melissa Ann Cook v. Commonwealth
Court of Appeals of Virginia, 2007
Walter J. Graves v. Commonwealth
Court of Appeals of Virginia, 2007
McGowan v. Commonwealth
637 S.E.2d 330 (Court of Appeals of Virginia, 2006)

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Bluebook (online)
630 S.E.2d 758, 48 Va. App. 333, 2006 Va. App. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-commonwealth-vactapp-2006.