RODRIGUEZ v. COMMONWEALTH

COLEMAN, J.

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 Sec. 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.

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.

(1) 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, 220, 429 S.E.2d 229, 233, aff'd en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993).

(2) 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.2d 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 223, 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, 16 Va. App. at 223, 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.

(3) 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 541, 431 S.E.2d at 83.

(4) 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 of it is ofttimes difficult. Frequently, it must be proved by circumstantial evidence alone. Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029 (1981). One may generally infer, however, that a person intends his deliberate acts. Campbell v. Commonwealth, 12 Va. App. 476, 483-84, 405 S.E.2d 1, 4 (1991). Evidence of what the defendant recently did as part of a plan or scheme of which the cocaine he possessed was a part is the best available evidence of what he intended to do with the cocaine.

The trial court, after weighing the limited prejudice to the defendant from the evidence of other crimes against the significant probative value it had to the prosecution, did not err by concluding that the probative value outweighed the prejudice. We conclude that the trial court did not err by admitting evidence that the defendant had sold drugs on two prior occasions. In view of the evidence relating the sales to the ongoing scheme of selling drugs, the evidence was relevant and admissible to prove the defendant's intent to distribute the cocaine.

At trial, the Commonwealth called Investigator William Wolfe, an experienced narcotics agent, to testify as an expert witness on drugs. Investigator Wolfe had not been involved in the investigation or search pertaining to the defendant. Defense counsel objected "to the admission of his testimony . . . [because] he will testify as an expert as to what all of these items found in the house mean . . . and . . . whether or not there was an intent to distribute here . . . [which is] going to pre-empt the jury's determination of fact . . . whether there was an intent to distribute." (emphasis added). In response, the Commonwealth's attorney represented to the court that Wolfe's testimony would be limited to the relationship of scales, and Inositol and other cutting agents to the distribution of cocaine and the street value of the drug. Based upon this brief sidebar hearing, the trial judge ruled that if properly qualified as an expert, Wolfe's avowed testimony would be relevant and admissible to prove that the defendant possessed the cocaine with the intent to distribute it.

When the prosecutor thereafter formally proffered Wolfe to the court as an expert, the trial judge inquired whether defense counsel objected, to which counsel replied, "No, Your Honor, not to that. Although I would say that my objection still stands, if that's okay." Without further objection, Wolfe then testified in detail in accordance with the prosecutor's earlier avowal to the court. However, the final questions put to Wolfe during direct examination departed from this avowed testimony:

Q. Investigator Wolfe, in your expert opinion, how much cocaine does one use for personal use?

A. A half gram, maybe a gram in a day, for a heavy user.

Q. For a heavy user? In your expert opinion, if an individual would have a hundred sixty grams of cocaine, would that be for personal use?

A. No Ma'am.

Q. What would that use be for?

A. That would be for distribution use.

The final question to Wolfe was improper, and the answer inadmissible, because it was an opinion by an expert witness going to the ultimate issue of fact before the jury. Wolfe was giving his opinion as to whether a person situated as the defendant intended to distribute cocaine. See Code Sec. 8.01-401.3; Llamera v. Commonwealth, 243 Va. 262, 264-65, 414 S.E.2d 597, 598-99 (1992). Defense counsel did not object, however, when the prosecutor asked the questions, when Wolfe responded, or at any time thereafter.

(5) It is well established that we will not consider an issue on appeal for which no specific contemporaneous objection was made in the trial court. Rule 5A:18. The contemporaneous objection rules, Supreme Court Rule 5:25 and our Rule 5A:18, have consistently been applied to hold that a trial judge does not commit reversible error by allowing objectionable evidence to be presented where counsel fails to make a timely and specific objection. The primary purpose of requiring timely and specific objections is to afford the trial judge a fair opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. Reid v. Baumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 780 (1977). "[I]t shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefore." Code Sec. 8.01-384(A).

Here, defense counsel did not object to Wolfe's opinion testimony that one who possesses 160 grams of cocaine does so for distribution purposes. The only objection that counsel arguably made was when Wolfe was first called as a witness, and that objection went to Wolfe's testimony as an expert because it would "pre-empt the jury's determination of fact . . . whether there was an intent to distribute." When the Commonwealth's attorney explained the scope of Wolfe's proposed testimony, the trial judge ruled that such evidence would be relevant and admissible. This was the only time that the trial judge was called upon to rule on the testimony, and that ruling addressed the evidence as avowed by the prosecutor and was correct. Later, when the prosecutor departed from this avowed line of questioning and pursued inadmissible testimony, defense counsel did not object, and the trial judge was not called upon to rule on the admissibility of that subsequent evidence.

Defense counsel's initial objection to Investigator Wolfe's testimony cannot be considered a contemporaneous objection to the later testimony which departed from the Commonwealth's avowed evidence and upon which the judge ruled. The earlier objection fails to satisfy either requirement of the contemporaneous objection rule with respect to the inadmissible testimony: first, the objection was not made when the improper evidence was offered and was not timely; second, when made, the objection was not sufficiently specific to inform the trial judge that the objection was to any particular evidence or testimony that Wolfe might give. To the contrary, the objection was to Wolfe being allowed to testify generally about drugs and whether the scope of his testimony was competent.

Without a contemporaneous objection by counsel to the particular evidence in issue, the trial judge cannot be expected to intervene ex mero motu to exclude it. For us to rule that the objection was sufficient to address the evidence that departed from that avowed and upon which the court ruled would impose upon trial judges the untenable responsibility of continually monitoring a witness's testimony throughout the course of trial.

We do not disapprove of the well established practice of allowing counsel to make a continuing objection to a related series of questions in order to avoid the necessity of repetitious objection. However, where evidence is introduced that departs from that avowed to the trial court and upon which the trial court ruled, the responsibility to contemporaneously object rests with counsel, not the trial judge.

Because we find no good cause for the defendant having failed to make a contemporaneous objection, we will not disregard the imprimatur of Rule 5A:18. Mounce v. Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987). Accordingly, we are barred by Rule 5A:18 from reviewing the question of the admissibility of the expert's final testimony.

Affirmed.

Elder, J., Bray, J., and Fitzpatrick, J., concurred.