PRESENT: All the Justices
JARVON LAVELL WALKER OPINION BY v. Record No. 140747 JUSTICE WILLIAM C. MIMS April 16, 2015 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether four separate charges
of selling, giving, or distributing a controlled substance were
permissibly joined for trial under Rules 3A:6(b) and 3A:10(c).
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Derrick Walker was an informant working with the Southside
Drug Task Force. He identified Jarvon Lavell Walker as a drug
dealer. 1 Jarvon was previously known to Derrick but they had
not spoken for some time.
On April 11, 2012 Derrick contacted Jarvon and arranged to
buy a gram of crack cocaine. At Jarvon’s suggestion, Derrick
met him at a store in South Hill and bought 0.961 gram of crack
cocaine for $50.
On April 13, 2012 Derrick again contacted Jarvon to buy
crack cocaine. Jarvon again suggested they meet at the same
store where he had sold Derrick crack cocaine two days earlier.
He later changed the location to a trailer park in South Hill.
1 Derrick and Jarvon are not related. 1 Derrick met Jarvon there and bought 0.845 gram of crack cocaine
for $50.
On April 19, 2012 Derrick again contacted Jarvon to buy
crack cocaine. Jarvon suggested they meet at a second trailer
park in South Hill. Derrick met Jarvon there and bought 0.603
gram of crack cocaine for $70.
On April 24, 2012 Derrick again contacted Jarvon to buy
crack cocaine. Jarvon suggested they meet at a trailer park in
Mecklenburg County. Derrick met Jarvon there and bought 0.773
Each of the four transactions was overseen and recorded by
task force personnel. Subsequent analysis by the Department of
Forensic Sciences confirmed the quantity and nature of the
substances Derrick had bought in each of the transactions.
A grand jury later indicted Jarvon on four separate counts
of selling, giving, or distributing a Schedule I or II
controlled substance, in violation of Code § 18.2-248,
following two or more prior convictions for substantially
similar offenses. He thereafter moved to sever the indictments
and be tried in four separate jury trials, arguing that the
charged offenses were not part of a common scheme or plan. He
also argued that he would be prejudiced if all four charges
were tried in a single proceeding because a jury might convict
2 him on all four even if only one was proved. After a hearing,
the circuit court denied the motion.
At the subsequent trial, the jury found Jarvon guilty on
all four counts. The court sentenced him to six years’
imprisonment on each count and three years’ post-release
supervision under Code § 19.2-295.2.
In an appeal to the Court of Appeals, Jarvon again argued
that the four offenses were not part of a common scheme or
plan. The Court of Appeals determined that the offenses did
constitute a common plan within the meaning of Rule 3A:6(b).
The court noted that “the term ‘common plan’ described crimes
that are related to one another for the purpose of
accomplishing a particular goal.” Walker v. Commonwealth,
Record No. 1051-13-2, slip op. at 6 (Mar. 25, 2014) (quoting
Scott v. Commonwealth, 274 Va. 636, 646, 651 S.E.2d 630, 635
(2007)). It observed that each sale followed a similar
pattern: Jarvon waited for Derrick to contact him about buying
crack cocaine; Jarvon set a location for the sale; each sale
was for approximately one gram; and all sales took place in or
near South Hill in Mecklenburg County. Id.
The Court of Appeals also noted that although expert
opinion testimony established the local market price for crack
cocaine was $100 per gram, Jarvon only charged $50 for 0.961
3 gram in the first sale. 2 From this evidence, the Court of
Appeals inferred that Jarvon had provided a discount price to
“create a return customer,” id. at 6, which was “a ‘plan that
tied the offenses together and demonstrated that the object of
each offense was to contribute to the achievement of a goal
that was not obtainable by the commission of any of the
individual offenses.’” Id. at 8-9 (quoting Spence v.
Commonwealth, 12 Va. App. 1040, 1044, 407 S.E.2d 916, 918
(1991) (internal alteration omitted)). Accordingly, it
concluded that joinder was permissible under Rule 3A:6(b).
The Court of Appeals then determined that justice did not
require severing the charges for the purposes of Rule 3A:10(c).
It opined that the evidence of multiple sales was admissible
because it helped establish both that Jarvon had the requisite
intent to sell, give, or distribute the controlled substance
and that he knew the nature and character of the substance he
was selling. The court also opined that the probative value of
admitting such evidence outweighed any prejudicial effect.
Finally, it noted both that much of the evidence would have
been the same if the circuit court had ordered separate trials
and that the decision to join the charges served interests of
2 Jarvon also sold 0.845 gram for $50 in the second sale, but trial testimony established that its quality was poor. Quality improved for the third and fourth sales and the price then was consistent with market price. Id. at 6-7.
4 judicial economy. Id. at 9-11. Accordingly, it concluded that
the circuit court did not abuse its discretion by permitting
all four charges to be tried together.
We awarded Walker this appeal.
II. ANALYSIS
In his first assignment of error, Walker asserts that the
Court of Appeals erred by determining that the four offenses
constituted a common plan for the purposes of Rule 3A:6(b).
Citing Spence, he argues that separate sales of a controlled
substance on different occasions are insufficient to constitute
a common scheme or plan.
The circuit court’s decision to join offenses for trial is
reviewed for abuse of discretion. Scott, 274 Va. at 644, 651
S.E.2d at 634. However, interpretations of the Rules of this
Court by the Court of Appeals, including the meaning of the
term “common plan” as used in Rule 3A:6(b), are questions of
law we review de novo. LaCava v. Commonwealth, 283 Va. 465,
471, 722 S.E.2d 838, 840 (2012). 3
3 Rule 3A:6(b) permits joinder of offenses that are based on (1) “the same act or transaction,” (2) multiple acts or transactions “that are connected”, or (3) multiple acts that “constitute parts of a common scheme or plan.” In Scott, we determined that “common scheme” and “common plan” are separate and distinct, but not mutually exclusive. 274 Va. at 645-46, 651 S.E.2d at 635. This appeal is limited solely to considering joinder of offenses based on common plan.
5 In Spence, the defendant sold cocaine to an undercover
narcotics investigator in four transactions between February 3
and May 10, 1989, in or near Whitesville in Accomack County.
12 Va. App. at 1041-42, 407 S.E.2d at 916-917. The Court of
Appeals considered whether the four charges were properly
joined for trial under Rule 3A:6(b). It considered each of the
three prongs of Rule 3A:6(b). It concluded that the charges
fulfilled none of them. Id. at 1042-45, 407 S.E.2d at 917-18.
Specifically addressing the common scheme or plan prong,
the Court of Appeals noted that “separate sales of a controlled
substance by the same individual on different occasions do not
constitute a common scheme or plan.” Id. at 1044, 40 S.E.2d at
918. Rather,
a common scheme or plan is present only if the “relationship among offenses is dependent upon the existence of a plan that ties the offenses together and demonstrates that the objective of each offense was to contribute to the achievement of a goal not obtainable by the commission of any of the individual offenses.”
Id. (quoting Godwin v. Commonwealth, 6 Va. App. 118, 122, 367
S.E.2d 520, 522 (1988) (internal alteration omitted)).
The Court of Appeals concluded that
[n]othing inherent in any of the four crimes herein charged would separate them from numerous offenses of possession and distribution of drugs that happen every day. There is no evidence of a plan tying
6 these four drug sales together or showing that each offense was intended to assist in accomplishing a goal other than that achieved by each individual offense. The four offenses merely show that Spence has the propensity to commit the crime and this inference has been held to be error because it reverses the presumption of innocence. Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).
Id. at 1044-45, 407 S.E.2d at 918.
The only material distinction between Spence and this case
is that the four transactions took place over a span of 13
weeks in Spence and over a span of 13 days here. While we
indicated in Satcher v. Commonwealth, 244 Va. 220, 299, 421
S.E.2d 821, 827 (1992), that offenses may be considered parts
of a common scheme or plan when they are “closely connected in
time, place, and means of commission,” the two crimes charged
in that case occurred “within a few yards and about one-half
hour of each other,” and shared the same modus operandi.
We are not persuaded that the general vicinity of South
Hill and a span of 13 days sufficiently connects the four
transactions here any more than the general vicinity of
Whitesville and a span of 13 weeks did in Spence. Similarly,
we are not persuaded that the pattern of the transactions
identified by the Court of Appeals in this case was
sufficiently specific to establish an unusual and unifying
modus operandi. Cf. Yellardy v. Commonwealth, 38 Va. App. 19,
7 22-25, 561 S.E.2d 739, 741-42 (2002) (affirming the conviction
in a single trial of a defendant charged with two robberies
occurring four days apart in the same park where each victim
was an unaccompanied male threatened with a rock and
subsequently accused by the defendant of having made a sexual
proposition).
We likewise are not persuaded that the evidence
established that Jarvon had a particular “goal not obtainable
by the commission of any of the individual offenses.” Spence,
12 Va. App. at 1044, 407 S.E.2d at 918 (internal quotation
marks omitted). The object of selling drugs for money is to
make money selling drugs. The seller’s goal is to make a
profit. Return customers are more profitable: the seller
incurs lower operating costs selling to them than if he or she
must spend the time and effort to attract new ones. Therefore,
the cultivation of return customers is intrinsic to the goal of
profiting from the sale of drugs.
The Court of Appeals also sought to distinguish Spence on
the ground that it was decided before our 2007 decision in
Scott. In that case we defined the term “common scheme or
plan” as used in Rule 3A:6(b) for the first time. 274 Va. at
644, 651 S.E.2d at 635. The Court of Appeals determined that
earlier cases, including Spence, were decided using an analysis
blending common scheme and common plan that Scott made obsolete
8 and they therefore were no longer useful in ascertaining
whether offenses formed “a common plan exclusive of a common
scheme.” Walker, slip op. at 8. We disagree.
In Scott, we held that “the term ‘common plan’ describes
crimes that are related to one another for the purpose of
accomplishing a particular goal.” 274 Va. at 646, 651 S.E.2d
at 635. This definition echoes rather than contradicts the
language in Spence that offenses constituting part of a common
plan must “contribute to the achievement of a goal not
obtainable by the commission of any of the individual
offenses.” 12 Va. App. at 1044, 407 S.E.2d at 918 (internal
quotation marks omitted). Accordingly, Scott does not overrule
or limit Spence. The similarity of these statements encourages
rather than discourages reaching similar results on the similar
facts present in both cases.
Nevertheless, we appreciate that the term “common plan” is
amorphous and may merit additional clarification. But see
United States v. Jawara, 474 F.3d 565, 574 (9th Cir. 2007)
(opining that “common scheme” and “common plan” are “self
defining”). We perceive the similarities between Rule 3A:6(b)
and Federal Rule of Criminal Procedure 8(a), which permits
joinder of multiple offenses when they “are of the same or
similar character, or are based on the same act or transaction,
or are connected with or constitute parts of a common scheme or
9 plan.” Federal “courts generally permit joinder [under the
federal rule’s common scheme or plan test] where the counts
grow out of related transactions. Stated another way, [federal
courts] ask whether commission of one of the offenses either
depended upon or necessarily led to the commission of the other
. . . .” Jawara, 474 F.3d at 574 (internal quotation marks,
citations, and alterations omitted); see also United States v.
Dominguez, 226 F.3d 1235, 1238-39 (11th Cir. 2000) (approving
joinder of offenses when proof of one provides the motive and
necessity for the other).
Although the joinder analysis is different from the
analysis of whether evidence of other crimes, wrongs, or acts
is admissible under Rule 2:404(b), the principles supporting
the evidentiary analysis helpfully illustrate our joinder
analysis in this case. In the Rule 2:404(b) context, a common
plan includes “‘such a concurrence of common features that the
various acts are naturally to be explained as caused by a
general plan of which they are the individual manifestations.’”
McWhorter v. Commonwealth, 191 Va. 857, 870-71, 63 S.E.2d 20,
26 (1951) (quoting 2 Wigmore on Evidence § 304, at 202 (3d ed.
1940)).
Thus, a “common plan” “connotes a series of acts done with
a relatively specific goal or outcome in mind.” David P.
Leonard, The New Wigmore: A Treatise on Evidence § 9.2.2, at
10 572 (2009). 4 This goal or outcome exists when the constituent
offenses occur sequentially or interdependently to advance some
common, extrinsic objective. For example, a defendant may
break into a bank president’s home, steal the keys to the bank,
and then burgle it. All of the associated offenses are
committed sequentially to further the principal objective of
taking the money from the bank. Id. § 9.2.1(a), at 562.
Similarly, a defendant may be a partner in a business and
murder the other partners to acquire control of it. Each
murder is a separate prerequisite to acquiring control of the
business, so each offense is an act in furtherance of that
objective. Id. § 9.2.1(b), at 567-68.
By contrast, this case has none of the features of a
common plan because there is no evidence from which to infer “a
relatively specific goal or outcome.” Id. § 9.2.2, at 572.
The four individual drug transactions are not “related to one
another for the purpose of accomplishing a particular goal.”
Scott, 274 Va. at 646, 651 S.E.2d at 635. The key factor, as
4 Similarly, a “common scheme” “connotes a particular act done multiple times in a similar way.” Leonard, supra, § 9.2.2, at 572. If the similarity between the offenses is sufficiently distinctive, this is consistent with our definition in Scott that “[t]he term ‘common scheme’ describes crimes that share features idiosyncratic in character, which permit an inference that each individual offense was committed by the same person or persons as part of a pattern of criminal activity involving certain identified crimes.” 274 Va. at 645, 651 S.E.2d at 635.
11 noted in Spence and the examples above, is that the goal
furthered by the offenses must be extrinsic to at least one of
them. Profiting from the sale of drugs, including cultivating
return customers, is intrinsic to the offense of selling drugs. 5
Accordingly, we conclude that the Court of Appeals erred
by ruling that the four offenses in this case were part of a
common plan. That is the sole basis upon which the court
determined that they fulfilled the requirements of Rule 3A:6(b)
for joinder under Rule 3A:10(c). Because the record contains
no evidence from which to infer a common plan, the requirements
of Rule 3A:6(b) are not met. We need not reach Jarvon’s second
assignment of error, in which he asserts that the court erred
by ruling that justice did not require separate trials.
III. CONCLUSION
For the foregoing reasons, we will reverse the judgment of
the Court of Appeals and remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
5 There was, for example, nothing from which to infer that Jarvon had a separate, extrinsic goal of concealing the proceeds of his sales through money laundering, in violation of Code § 18.2-246.3, or using them to further racketeering activity proscribed by Chapter 13 of Title 18.2.
12 JUSTICE KELSEY, with whom JUSTICE McCLANAHAN joins, dissenting.
My colleagues have concluded that Walker’s four drug
charges should have been tried separately. The governing
standard of appellate review, however, requires that we reverse
only if the trial judge abused his discretion in coming to a
different conclusion. I am unwilling to say that he did.
I.
Under Rule 3A:10(c), a trial court may join separate
criminal charges in a consolidated trial “if justice does not
require separate trials” and “the offenses meet the
requirements of Rule 3A:6(b).” Rule 3A:6(b) authorizes a
single indictment or information to charge separate offenses
“if the offenses are based on the same act or transaction, or
on two or more acts or transactions that are connected or
constitute parts of a common scheme or plan.” See generally
Scott v. Commonwealth, 274 Va. 636, 644-46, 651 S.E.2d 630,
634-35 (2007).
The legal principle is simple and highly flexible.
Joinder is permissible if it is just and if the charges could
have been joined in the initial charging instrument. Rule
3A:10(c) and Rule 3A:6(b) use discretionary concepts incapable
of being reduced to precise metrics. I point this out not to
criticize the Rules, but to praise them. No two drug-related
cases are exactly alike, as every trial judge knows,
13 particularly those who have heard scores of such cases.
Factual dissimilarities often exist, and thus, the legal
standard for joinder must be supple enough to handle the broad
spectrum of drug-related cases — not just the handful of cases
that make their way into the appellate reports.
For this reason, we have repeatedly emphasized that
whether criminal charges “should be tried separately or
together is a matter resting within the sound discretion of the
trial court.” Fincher v. Commonwealth, 212 Va. 552, 553,
186 S.E.2d 75, 76 (1972) (per curiam) (citing Bryant v.
Commonwealth, 189 Va. 310, 315, 53 S.E.2d 54, 56 (1949)). 1
“Hence, we adopt the rule of discretion for determining
questions of consolidation.” Id. Absent a showing that the
trial court committed an abuse of discretion, we have no
authority to reverse a joinder decision in a criminal case.
The exercise of discretion presupposes “that, for some
decisions, conscientious jurists could reach different
conclusions based on exactly the same facts — yet still remain
entirely reasonable.” Thomas v. Commonwealth, 62 Va. App. 104,
111, 742 S.E.2d 403, 407 (2013) (citation and internal
quotation marks omitted). In this context, the trial court
1 See also Scott, 274 Va. at 644, 651 S.E.2d at 634; Commonwealth v. Minor, 267 Va. 166, 172, 591 S.E.2d 61, 65 (2004); Commonwealth v. Smith, 263 Va. 13, 16, 557 S.E.2d 223, 225 (2002); Cheng v. Commonwealth, 240 Va. 26, 33-34, 393 S.E.2d 599, 603 (1990).
14 “has a range of choice, and its decision will not be disturbed
as long as it stays within that range and is not influenced by
any mistake of law.” Lawlor v. Commonwealth, 285 Va. 187, 212-
13, 738 S.E.2d 847, 861 (2013) (alteration and internal
quotation marks omitted). “This bell-shaped curve of
reasonability governing our appellate review rests on the
venerable belief that the judge closest to the contest is the
judge best able to discern where the equities lie.” Thomas, 62
Va. App. at 111-12, 742 S.E.2d at 407 (quoting Hamad v. Hamad,
61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013)) (internal
quotation marks omitted).
It necessarily follows that an abuse of discretion cannot
be shown merely because “[r]easonable trial judges and even
some members of this Court, had they been sitting as trial
judges in this case,” might have reached a different conclusion
than the one under review. Coe v. Commonwealth, 231 Va. 83,
88, 340 S.E.2d 820, 823 (1986). 2 “‘Only when reasonable jurists
could not differ can we say an abuse of discretion has
occurred.’” Grattan v. Commonwealth, 278 Va. 602, 620, 685
S.E.2d 634, 644 (2009) (quoting in parenthetical Thomas v.
Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743
2 See also AME Fin. Corp. v. Kiritsis, 281 Va. 384, 393, 707 S.E.2d 820, 824 (2011) (“In evaluating whether a trial court abused its discretion, ‘we do not substitute our judgment for that of the trial court.’” (quoting Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997))).
15 (2005)). If “reasonable trial judges could properly disagree,”
it matters not that “some members of this Court” would have
made a different discretionary decision. Noll v. Rahal, 219
Va. 795, 801, 250 S.E.2d 741, 745 (1979).
II.
I concede that a common plan for purposes of Rule 3A:6(b)
cannot be applied at the highest levels of abstraction. Every
drug dealer probably plans on selling as many drugs to as many
addicts as he can. Expanding the common plan definition to
this level of generality would render the joinder test
unreasonably broad. But I think it no less unreasonable to
tighten the joinder standard to the point where no drug dealer
can have a common plan to sell drugs. Burglars, sex offenders,
thieves, counterfeiters, and all manner of other criminals fall
within the parameters of Rule 3A:6(b). I see no reason why
drug dealers should receive a special exemption from its reach.
Navigating between the overly broad and overly narrow
interpretations of common plan requires trial courts to focus
on the distinct, limiting features of each case. A trial court
should consider, for example, whether there was a single buyer
or multiple buyers, whether the time frame of the transactions
was short or long, whether the sales territory was the same or
different for all transactions, whether one or more types of
16 drugs were sold, and whether there was a continuing or episodic
relationship between the buyer and seller.
Even with these guidelines, it may well be true that the
common-plan standard of Rule 3A:6(b) requires a considerable
amount of judicial line-drawing to keep it from being applied
too broadly or too narrowly. As Justice Holmes once said,
however, we need not be “troubled by the question where to draw
the line. That is the question in pretty much everything worth
arguing in the law.” Irwin v. Gavit, 268 U.S. 161, 168 (1925).
Nor should we abandon the exercise simply because it “depends
upon differences of degree. The whole law does so as soon as
it is civilized.” Daniels v. Williams, 474 U.S. 327, 334-35
(1986) (quoting LeRoy Fibre Co. v. Chicago, Milwaukee & St.
Paul Ry., 232 U.S. 340, 354 (1914) (Holmes, J., concurring in
part)).
III.
In this case, the evidence at trial 3 showed that Walker, on
four separate occasions over the course of thirteen days, sold
3 See United States v. Cardwell, 433 F.3d 378, 385 & n.1 (4th Cir. 2005) (recognizing that an appellate court reviewing a trial court’s joinder decision must look both “to the allegations in the indictment and the evidence produced at trial” and noting that this “rule has the benefit of a built-in type of harmlessness review; if the indictment does not allege a sufficient relationship for [federal joinder] purposes, but the evidence at trial reveals that such a relationship exists, it is difficult to see how the defendant could ever be prejudiced by the technical misjoinder”).
17 cocaine to the same police informant in and around the South
Hill area of Mecklenburg County. These four transactions were
not isolated, random, or unplanned encounters between a drug
dealer and an addict. They were instead — a reasonable jurist
could conclude — evidence of a common plan by Walker to groom a
specific buyer to participate in an ongoing buyer-seller
relationship, in a short amount of time, in the same sales
territory, with the same drug.
In making his decision, the experienced trial judge in
this case no doubt considered the pretrial proffer of Walker’s
counsel, stating:
Your Honor, as part of his defense, [Walker] anticipate[s] that he may want to present a defense that perhaps the substance that was transferred was not, in fact, cocaine, or that there was no drug transaction at all.
J.A. at 28. That proffer proved to be prophetic in light of
the closing argument to the jury by Walker’s counsel:
We don’t know for certain that what he was setting up was any kind of transaction for cocaine. Remember, it must be cocaine. It can’t be marijuana, it can’t be ChapStick, it can’t be bubblegum or anything else. What’s in his hand, what goes back and forth, if there is anything going back and forth, must be cocaine.
Id. at 412.
Walker’s defense strategy underscores the reasonableness
of the trial court’s decision to try the charges together.
Walker wanted the jury to believe that the Commonwealth could
18 not prove that what he handed to the informant was “in fact,
cocaine,” id. at 28, and that it could have been, for all we
know, “ChapStick” or “bubblegum or anything else,” id. at 412.
It is true he hoped to convince the jury that the informant was
lying and that no drug transaction occurred at all. But Walker
also sought to imply that, if the jury believed something was
sold, he had no knowledge it was cocaine and no intent to
distribute it.
This subtle argument implicated the Commonwealth’s burden
of proving that Walker “was aware of the presence and character
of the drugs,” Andrews v. Commonwealth, 216 Va. 179, 182,
217 S.E.2d 812, 814 (1975), and that he possessed them with the
“intent” to distribute, Code § 18.2-248(A). His ChapStick and
bubblegum strategy might have had better success if the four
charges were tried to four separate juries, with each jury
aware of only one offense. As Walker correctly points out, the
law of evidence does not permit the admission of evidence of
other crimes merely to show propensity — that is, once a drug
dealer, always a drug dealer.
But Walker’s anti-propensity generalization breaks down
when knowledge and intent are at issue, as they certainly were
in this case. Evidence of other crimes is permissible if it
helps prove “knowledge” and “intent.” See Va. R. Evid.
2:404(b). See generally Kirkpatrick v. Commonwealth, 211 Va.
19 269, 272, 176 S.E.2d 802, 805 (1970). In this respect,
Virginia law follows an “inclusionary approach to the uncharged
misconduct doctrine” by admitting evidence of other crimes “if
relevant, for any purpose other than to show a mere propensity
or disposition on the part of the defendant to commit the
crime.” Kent Sinclair et al., Virginia Evidentiary
Foundations § 6.4[A], at 165 (1998). 4
For this reason, drug deals shortly before and shortly
after the one in question may be admissible to prove that the
defendant knew the white substance in his hand was an illegal
drug (not ChapStick or bubblegum) and that he intended to sell
it. 5 As many courts have held, knowledge and intent must be
proved in every drug-related case, and evidence of other
closely related crimes can be used to prove it. 6
4 It is thus fair to say that, “[u]ltimately, the question whether to admit evidence of other crimes involves the same considerations as any other circumstantial evidence.” Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616 (1990). 5 When a non-propensity basis exists for admitting evidence, it does not matter if the evidence involves events preceding or subsequent to the date of the alleged crime. See generally Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984) (accepting that, when logically and legally relevant, factual circumstances “which followed the commission of the crime on trial, as well as those which preceded it” should be admissible “even though they may show the defendant guilty of other offenses”). 6 See, e.g., Barlow v. Commonwealth, 26 Va. App. 421, 428, 494 S.E.2d 901, 904 (1998); Wilkins v. Commonwealth, 18 Va. App. 293, 299, 443 S.E.2d 440, 444 (1994); Rodriguez v. Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d 419, 422
20 I acknowledge, but am unmoved by, Walker’s concern that
the four offenses, when known by the same jury, might prejudice
his defense. In a sense, “[a]ll evidence tending to prove
guilt is prejudicial,” Powell v. Commonwealth, 267 Va. 107,
141, 590 S.E.2d 537, 558 (2004), at least from the point of
view of the person standing trial. “Virginia law, however,
intervenes only when the alleged prejudice tends to inflame
irrational emotions or leads to illegitimate inferences. And
even then, it becomes a matter of degree.” Thomas, 44 Va. App.
at 758, 607 S.E.2d at 746.
Like the trial court and the unanimous panel of the Court
of Appeals, I find it neither unreasonable nor unjust to
consider all four drug transactions — involving the same buyer,
during a thirteen-day period, concerning the same drug, taking
place in the same sales territory, arising out of an ongoing
relationship — to determine whether Walker knew what he was
(1994); Satterfield v. Commonwealth, 14 Va. App. 630, 637, 420 S.E.2d 228, 232 (1992) (en banc); Rider v. Commonwealth, 8 Va. App. 595, 599, 383 S.E.2d 25, 27 (1989); Barber v. Commonwealth, 5 Va. App. 172, 180-81, 360 S.E.2d 888, 892 (1987); accord United States v. Toro, 359 F.3d 879, 884 (7th Cir. 2004); United States v. Booker, 334 F.3d 406, 411-12 (5th Cir. 2003); United States v. Maden, 114 F.3d 155, 157 (10th Cir. 1997); United States v. Jackson, 84 F.3d 1154, 1159 (9th Cir. 1996); United States v. Ramirez, 894 F.2d 565, 569 (2d Cir. 1990); United States v. Samuel, 431 F.2d 610, 612 (4th Cir. 1970); Bell v. United States, 677 A.2d 1044, 1047 (D.C. 1996); State v. Graham, 768 P.2d 259, 262 (Kan. 1989); State v. Montford, 529 S.E.2d 247, 252 (N.C. Ct. App. 2000); State v. King, 561 S.E.2d 640, 645-46 (S.C. Ct. App. 2002); Howard v. State, 713 S.W.2d 414, 416 (Tex. App. 1986).
21 selling and intended to sell it. To be sure, I see little
justice in allowing Walker to have the “evidence sanitized,”
Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 577
(1984) (internal quotation marks omitted), in an effort to
improve his chances of convincing one or more of four different
juries of his ChapStick and bubblegum defense.
I respectfully dissent.