                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia


THOMAS PIERCE SMITH
                                          MEMORANDUM OPINION * BY
v.        Record No. 1500-96-4             JUDGE LARRY G. ELDER
                                              JUNE 17, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                    Frank A. Hoss, Jr., Judge
          Mark Thomas Crossland for appellant.

          Richard B. Smith, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Thomas Pierce Smith (appellant) appeals his conviction of

distribution of an imitation controlled substance in violation of

Code § 18.2-248.   He contends (1) that the trial court erred when

it admitted evidence that he previously sold crack cocaine to an

undercover investigator and (2) that the evidence was

insufficient to support his conviction.    For the reasons that

follow, we affirm.

                                  I.

                                 FACTS

     Appellant was charged with "knowingly and intentionally

sell[ing], giv[ing] or distribut[ing] an imitation controlled

substance" on July 20, 1995.    At his trial, Ronquillo Dean

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
testified that he was involved in two transactions with appellant

in July, 1995.   Mr. Dean testified that he purchased crack

cocaine from appellant on July 10.      Appellant's counsel did not

object to this testimony.   Mr. Dean then testified that he

attempted to purchase a substance from appellant on July 20 that

appellant represented was crack cocaine but turned out to be

macadamia nuts packaged to look like crack cocaine.

     Mervat Milad, a forensic scientist with the Division of

Forensic Science, testified about the identity of the substances

Mr. Dean obtained from appellant on July 10 and July 20.

Appellant's counsel objected to her testimony regarding the

substance purchased on July 10 on the ground that this was

inadmissible evidence of prior criminal conduct not relevant to

the charge that appellant sold an imitation controlled substance

on July 20.   The trial court overruled appellant's objection and

cautioned the jury that it could consider the evidence of the

sale on July 10 "only for the purpose of showing intent and

showing a potential relationship between [appellant and Mr.

Dean.]"   Ms. Milad subsequently testified that the substance

purchased from appellant on July 10 was cocaine.     She also

testified that the substance obtained from appellant on July 20

was not a controlled substance.
     A jury convicted appellant of distribution of an imitation

controlled substance.   In the course of the proceedings, the

trial court denied appellant's motions to strike the evidence, to




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set aside the verdict, and to reconsider.




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                                 II.

  ADMISSIBILITY OF EVIDENCE REGARDING THE DRUG SALE ON JULY 10

      Initially, we consider appellant's contention that his

objections to all of the evidence offered by the Commonwealth

regarding the drug sale on July 10 were properly preserved for

appeal.   In his brief, appellant challenges the admissibility of

(1) Mr. Dean's testimony about his purchase from appellant on

July 10, (2) Ms. Milad's testimony that the substance purchased

was in fact crack cocaine, and (3) a certificate of drug analysis

stating Ms. Milad's opinion.   We hold that of these three sources

of evidence, only appellant's objection to Ms. Milad's testimony

is properly before us.
      We are unable to consider the admissibility of Mr. Dean's

testimony because appellant did not make a timely objection to

it.   In order for an objection to be preserved for appeal, "it

must be timely made and the grounds stated with specificity."

Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168

(1986); see Rule 5A:18.   To be timely, the objection must be made

at the time the evidence is offered, Ingram v. Commonwealth, 1 Va

App. 335, 341, 338 S.E.2d 657, 660 (1986) (citation omitted), or,

in the case when the objectionable nature of the evidence is not

immediately obvious, at the time "the dangerous drift of the

examination becomes apparent."    Weimer v. Commonwealth, 5 Va.

App. 47, 57, 360 S.E.2d 381, 386 (1987).   Appellant did not

object to Mr. Dean's testimony about the drug sale on July 10 at



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the time it was offered, despite the obvious fact that this

evidence concerned prior criminal conduct.    Although appellant

did object to Mr. Dean's testimony in his motion to set aside the

verdict, this objection came too late to preserve it for appeal.

 See Carter v. Nelms, 204 Va. 338, 343, 131 S.E.2d 401, 404

(1963) (holding that objection to evidence first raised in a

motion to set aside the verdict "clearly . . . was too late").

     In addition, we cannot consider the admissibility of the

certificate of analysis because it was never admitted into

evidence.   Although the certificate of analysis was marked as

Commonwealth's exhibit one and authenticated by Ms. Milad, it was

neither moved into evidence by the Commonwealth's attorney nor

admitted into evidence by the trial court.
     Next, we consider appellant's contention that the trial

court erred when it admitted Ms. Milad's testimony that the

substance purchased from him on July 10 was cocaine.   He argues

that her testimony was inadmissible because it was evidence of a

prior crime that was neither connected with the offense charged

nor relevant to any element or fact in issue at trial.    Although

we agree that Ms. Milad's testimony was erroneously admitted, we

also conclude that this error was harmless.

     "The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion."     Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).




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     Generally, evidence of other crimes or bad acts committed by

the accused is inadmissible to prove that the accused committed

or likely committed the particular crime charged.       See Rodriguez

v. Commonwealth, 249 Va. 203, 206, 454 S.E.2d 725, 727 (1995)

(citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d

802, 805 (1970)).   However, exceptions to this general rule of

exclusion are well established.     See Morton v. Commonwealth, 227

Va. 216, 222, 315 S.E.2d 224, 228, cert. denied, 469 U.S. 862,

105 S. Ct. 198, 83 L.Ed.2d 130 (1984).
          In order for evidence that the accused has
          committed other crimes to be admissible, it
          need only be relevant to prove a material
          fact or issue, and its relevance must
          outweigh the prejudice inherent in proving
          that an accused has committed other crimes.

Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229,

234, aff'd en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993)

(citing Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609,

616, cert. denied, 498 U.S. 908, 111 S. Ct. 281, 112 L.Ed.2d 235

(1990)).   Evidence of prior drug related conduct is relevant to

prove an element of a drug related charge only if "there has been

. . . [a] showing of an intimate relation or connection between

the prior conduct and an element of the crime charged."       Wilson,

16 Va. App. at 222, 429 S.E.2d at 234.

     We hold that the trial court abused its discretion when it

admitted Ms. Milad's testimony that the substance purchased from

appellant on July 10 was cocaine.       The trial court admitted Ms.




                                  -6-
Milad's testimony regarding the drug sale on July 10 for two

purposes:    (1) to prove appellant's intent and (2) to show a

potential relationship between appellant and Mr. Dean.    Admission

of Ms. Milad's testimony for both of these purposes was

erroneous.

     First, the trial court erred when it concluded that the

evidence regarding the drug sale on July 10 was relevant to

appellant's intent in the charged offense.   The two transactions

occurred ten days apart and involved entirely different

substances.   The sale on July 10 was not sufficiently "related in

time and nature to the charged offense so that the fact finder

could reasonably infer that the latter act follows from or was

related to the former."    Jones v. Commonwealth, 18 Va. App. 329,

332, 443 S.E.2d 820, 821-22 (1994).

     In addition, the trial court erred when it admitted evidence

of the prior drug sale for the purpose of proving "a potential

relationship" between appellant and Mr. Dean.   The evidence of

the drug sale on July 10 was relevant to whether or not appellant

and Mr. Dean previously engaged in a seller-buyer relationship.

However, the trial court erred when it concluded that the

existence of this prior relationship was a "material" issue.
          Evidence is admissible if it is both relevant
          and material. "[E]vidence is relevant if it
          tends to establish the proposition for which
          it is offered." Evidence is material if it
          relates to a matter properly at issue.

Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436,



                                 -7-
441 (1987).   In a prosecution for distributing an imitation

controlled substance, the Commonwealth has the burden of proving

(1) that a defendant intentionally distributed a substance and

(2) that this substance was an imitation controlled substance.

See Code § 18.2-248(A).   Whether or not appellant and Mr. Dean

had a prior relationship involving the sale of illegal drugs was

purely collateral to the charge that appellant sold an imitation

controlled substance on July 20, 1995.
     Although the trial court erroneously admitted Ms. Milad's

testimony, we also hold that this error was harmless.    A

nonconstitutional error is harmless if "it plainly appears from

the record and the evidence given at trial that the error did not

affect the verdict."   Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991) (en banc).   "An error does not

affect a verdict if a reviewing court can conclude, without

usurping the jury's fact finding function, that had the error not

occurred, the verdict would have been the same."   Id.
     Based on our review of the record, we cannot say that the

erroneous admission of Ms. Milad's testimony affected either the

jury's finding of guilt or its determination of appellant's

sentence.   First, even without Ms. Milad's testimony, the

evidence that appellant distributed an imitation controlled

substance on July 20 was overwhelming.   In addition, the

exclusion of Ms. Milad's testimony would not have changed the

jury's sentence because Ms. Milad's testimony merely corroborated




                                -8-
Mr. Dean's testimony, to which appellant did not object, that the

substance appellant sold on July 10 was cocaine.




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                                 III.

                      SUFFICIENCY OF THE EVIDENCE

     We disagree with appellant's argument that the evidence was

insufficient to support his conviction.    The evidence proved that

appellant called Mr. Dean on July 20 and negotiated the sale of

sixty-two grams of a substance that he represented was crack

cocaine for $1,900.    Prior to meeting with Mr. Dean at the

appointed time and place to complete the sale, appellant had

arranged for the placement of the imitation crack cocaine in a

soft drink cup nearby.    When Mr. Dean arrived, appellant directed

him to take the cup's contents in exchange for the $1,900.      After

Mr. Dean recovered the cup, he discovered that it contained

macadamia nuts packaged to look like crack cocaine.       Both Mr.

Dean and Officer Toney testified that drug dealers attempting to

sell imitation crack cocaine frequently use macadamia nuts

because of their similar appearance to the real drug.      A

laboratory analysis of the macadamia nuts established that they

were not a controlled substance.    Based on this evidence, we

cannot say that the jury's conclusion that appellant distributed

an imitation controlled substance on July 20 was either plainly

wrong or without evidentiary support.     Cf. Werres v.

Commonwealth, 19 Va. App. 744, 748-49, 454 S.E.2d 36, 38-39

(1995).




                                 -10-
     For the foregoing reasons, we affirm the conviction of

distribution of an imitation controlled substance in violation of

Code § 18.2-248.

                                                        Affirmed.




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