                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, AtLee and Athey
              Argued at Lexington, Virginia
UNPUBLISHED




              JAMES PARNELL PEAKS
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0995-18-3                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                 OCTOBER 8, 2019
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF CARROLL COUNTY
                                                Brett L. Geisler, Judge

                               Edgar H. DeHart, Jr. for appellant.

                               A. Anne Lloyd, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Following a jury trial, the Circuit Court of Carroll County convicted appellant James

              Parnell Peaks of possession with intent to distribute 10 grams or more of methamphetamine

              under Code § 18.2-248(C)(4). The judge imposed a sentence of twenty-five years with three

              years suspended. On appeal, Peaks argues that the circuit court erred by allowing testimony on

              prior bad acts — specifically, prior controlled purchases made by confidential informants, one of

              which served as the basis for the search warrant that led to Peaks’s arrest. For the following

              reasons, we find Peaks waived his objection to the admissibility of testimony on prior bad acts

              and affirm.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                           I. BACKGROUND

        On appeal, we view the evidence in the light most favorable to the Commonwealth, the

party who prevailed before the circuit court. Clanton v. Commonwealth, 53 Va. App. 561, 564

(2009) (en banc).

        Peaks was arrested after law enforcement executed a search warrant of his residence and

found methamphetamine both in his home and on Peaks’s person, as well as distribution

paraphernalia in the home. The circuit court permitted Investigator Chuck L. Edwards (who was

also qualified by the circuit court as an expert in drug investigation at trial) to testify about prior

purchases made by confidential informants from Peaks, over defense objection. He explained

that three controlled buys had taken place in the previous three to four months. Edwards

explained that law enforcement obtained a warrant to search Peaks’s residence based on these

purchases. Peaks and numerous other people were at the house when the police arrived. During

the search, the police found packaged methamphetamine, digital scales, baggies, and currency.

When searching Peaks’s person, the police found a bag containing 6.2 grams of

methamphetamine in his pocket and placed him under arrest.

        Peaks testified on his own behalf. He explained that he had been addicted to drugs since

about 2012 and allowed two females to live in the house and deal drugs there in exchange for

free drugs. He said he did not know many of the people present in his home at the time of the

search and that they were there “partying.” He admitted during his case-in-chief that he had sold

drugs in the past, but not on the day of the search, and he maintained that the methamphetamine

in his pocket was for personal use. He denied possession of any of the other drugs and

distribution paraphernalia present in the home.




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                                           II. ANALYSIS

       Peaks argues that the circuit court erred in permitting Investigator Edwards to testify

about the three controlled buys made by a confidential informant prior to the search of Peaks’s

home that led to his arrest.

       Generally, unless it fits within an established exception “[e]vidence 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.’” Rodriguez v. Commonwealth, 18

Va. App. 277, 280 (1994) (quoting Sutphin v. Commonwealth, 1 Va. App. 241, 245 (1985)),

aff’d, 249 Va. 203 (1995); see also Va. R. Evid. 2:404(b). Here, the circuit court concluded that

evidence of Peaks’s prior bad acts, specifically Edwards’s testimony about the previous

controlled buys, was admissible. We do not consider whether that determination was erroneous,

however, because Peaks’s testimony about prior drug sales in his case-in-chief waived his ability

to challenge the admission of such evidence. See Commonwealth v. Swann, 290 Va. 194, 196

(2015) (“The doctrine of judicial restraint dictates that we decide cases ‘on the best and

narrowest grounds available.’” (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4

(2010))).

       Independent of the limitations on the admissibility of prior bad acts evidence, “[u]nder

Virginia law, a litigant waives an objection to evidence when he introduces ‘evidence dealing

with the same subject as part of his own case-in-chief.’” Isaac v. Commonwealth, 58 Va. App.

255, 260 (2011) (quoting Pettus v. Gottfried, 269 Va. 69, 79 (2005)). “Put another way, when a

litigant ‘unsuccessfully objects to evidence that he considers improper and then introduces on his

own behalf evidence of the same character, he waives his earlier objection to the admission of

that evidence.’” Id. (quoting Combs v. Norfolk & W. Ry., 256 Va. 490, 499 (1998)).

               Though explained in different ways, the practical effect of the
               principle remains clear: “Some courts so hold because the error is
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                harmless, and others because the subsequent introduction of the
                same evidence is a waiver of the objection. Whether it be placed
                upon one ground or the other, the result is the same.”

Id. at 260-61 (quoting New York Life Ins. Co. v. Taliaferro, 95 Va. 522, 523 (1898)).

        Although an exception to the waiver rule exists when such evidence is brought out

through cross-examination or rebuttal, see Drinkard-Nuckols v. Andrews, 269 Va. 93, 102

(2005), this exception is not applicable here, as Peaks discussed his prior drug sales when he

testified in his own defense during his case-in-chief. On direct, his attorney asked Peaks what he

meant when, in a prior statement, he said, “I would also sale some to people that I knew.” Peaks

replied: “Well, uh, earlier, not that day[, the day of his arrest,] but earlier, I had sold some to

some people . . . .”

        Peaks unsuccessfully sought to exclude evidence of his having previously sold narcotics,

but “then introduce[d] on his own behalf evidence of the same character,” Isaac, 58 Va. App. at

260, when he testified that he had previously sold drugs. Accordingly, he waived his earlier

objection to the admissibility of that evidence.

                                          III. CONCLUSION

        We do not reach the issue as to whether the circuit court erred in admitting evidence of

Peaks’s prior sales of methamphetamine, because Peaks testified to having previously sold drugs

during his case-in-chief. Because his testimony effectively waived his objection, we affirm the

judgment of the trial court.

                                                                                             Affirmed.




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