                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia

LINDA DIANE McWILLIAMS
                                          MEMORANDUM OPINION * BY
v.   Record No. 1272-96-2               JUDGE JAMES W. BENTON, JR.
                                               JUNE 3, 1997
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     James B. Wilkinson, Judge

           Patricia P. Nagel, Assistant Public Defender
           (David J. Johnson, Public Defender, on
           brief), for appellant.
           John K. Byrum, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



      Linda Diane McWilliams was convicted of possession of

cocaine in violation of Code § 18.2-250.   On appeal, McWilliams

argues that the trial judge erred in admitting evidence that

should have been excluded on hearsay and relevancy grounds.    For

the reasons that follow, we affirm the conviction.

                                I.

      McWilliams was indicted and tried only on the offense of

possession of cocaine.   While giving her opening statement, the

Commonwealth's attorney stated that Officer David Akers received

a telephone call informing him that McWilliams was getting into

the cab of a truck with a truck driver and that McWilliams "was a

wanted prostitute."   Counsel for McWilliams objected on hearsay

grounds, and the judge stated that "[i]t's really not hearsay.     I
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
guess it's for the reason he went there."

        The Commonwealth's only witness, Officer Akers, testified

that on July 19, 1995, he received a tip from a reliable

informant.    The Commonwealth's attorney asked Akers what the

informant told him about McWilliams.      Akers said, "[h]e told me

that there was a prostitute."    Counsel for McWilliams objected

"to what [the informant] told [Akers]," and the judge told the

jury to "[d]isregard that last statement."      Counsel for

McWilliams then stipulated that Akers had probable cause to

approach McWilliams.
        Akers testified that as he was approaching the truck, he saw

the cab of the truck "moving . . . in a back and forth motion

like a rocking motion."    When Akers tried to enter the cab, the

door was locked.    Akers knocked on the door and did not receive a

response until five minutes later.       Akers testified that he

looked into a window of the cab and could see moving back and

forth the curtain that shielded the back compartment.      Counsel

for McWilliams objected and stated, "I don't believe there is any

prostitution warrant that is before this Court or before this

jury.    I don't think it's relevant at all."    The judge noted that

Akers had not mentioned prostitution.      When the Commonwealth's

attorney argued that Akers had a "right to explain the

circumstances," the judge allowed the Commonwealth to proceed.

        Akers testified that the truck driver came to the window and

opened the door.    Akers could see through an opening in the




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curtain McWilliams pulling her dress down.   Counsel for

McWilliams objected on relevancy grounds and stipulated that

Akers had probable cause to arrest McWilliams.   The judge stated,

"We have had enough of this.   All right, what happened?"   Akers

then testified that he ran McWilliams' name through the computer.

The judge interrupted Akers, told Akers not to "go into that,"

and instructed the jury to disregard "anything other than the

warrant."   The judge told the jury that "[t]he arrest was lawful.

He arrested her.   Let's move along."
     Akers testified that he arrested McWilliams.   At the police

station, Akers searched McWilliams' purse and found a three inch

tubular piece of an antenna.   The tube contained a residue that

the state laboratory determined to be crack cocaine.

     The Commonwealth then rested, and McWilliams offered no

evidence.   In the course of instructing the jury, the trial judge

instructed the jury as follows:
          Remember I instructed you there might have
          been some evidence of some other activity in
          this case but that is not to be considered by
          you in finding the defendant guilty. At this
          stage of the trial you will not use that at
          all. Do you understand that?


The jury found McWilliams guilty of possession of cocaine.    After

hearing the arguments of counsel regarding the appropriate

punishment, the jury imposed a sentence of two and one-half

years.   McWilliams moved to set aside the verdict on the grounds

that it was contrary to the law and the evidence.   Stating that

was "purely a jury question," the judge overruled the motion.



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                                 II.

     McWilliams first argues that the trial judge erred in

allowing the Commonwealth's attorney to refer, in her opening

statement, to the informant's statement that McWilliams was a

prostitute.    McWilliams asserts that the trial judge abused his

discretion in allowing this argument because the informant's

statement was hearsay.   We are barred from considering this

issue, however, because McWilliams failed to make a motion for a

mistrial or to seek a cautionary instruction.    See Martinez v.

Commonwealth, 241 Va. 557, 559 n.2, 403 S.E.2d 358, 359 n.2

(1991) ("[The Supreme] Court has repeatedly held that errors

assigned because of a prosecutor's improper comments or conduct

during argument will not be considered on appeal unless the

accused timely moves for a cautionary instruction or for a

mistrial.").

                                III.

     McWilliams next argues that the trial judge erroneously

admitted Akers' testimony that the informant told him McWilliams

was a prostitute.   McWilliams contends that the informant's

statement was hearsay.   We disagree.

     Preliminarily, we note the well established rule that "[t]he

admissibility of evidence is within the broad discretion of the

trial [judge], and the trial [judge's] ruling will not be

disturbed on appeal absent an abuse of discretion."    Johnson v.
Commonwealth, 21 Va. App. 102, 105, 462 S.E.2d 125, 126 (1995).




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The Supreme Court has repeatedly stated that,
             "[t]he hearsay rule does not operate to
          exclude evidence of a statement . . . offered
          for the mere purpose of explaining or
          throwing light on the conduct of the person
          to whom it was made. The evidence was
          admitted not for the purpose of showing the
          guilt or innocence of the defendant; but for
          the purpose of showing the reason for the
          police officers' action in arresting him."


Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506, 508

(1979) (citation omitted).
     As in Upchurch, the trial judge ruled that the statement

that McWilliams was a prostitute was not offered to show that

McWilliams was a prostitute.   The statement was offered to

explain why Akers approached and arrested McWilliams.   Because

the statement was not offered for its truth, it is not hearsay

and was not excludable on that ground.   See id.   Accordingly, we

hold that the trial judge did not abuse his discretion in

overruling McWilliams' hearsay objection.

                                IV.

     McWilliams next argues that the trial judge erred in

admitting irrelevant testimony regarding the circumstances

Officer Akers observed before he arrested McWilliams and the fact

that McWilliams was a prostitute.

     The record proves that before the testimony at issue was

offered, McWilliams stipulated that the officer had probable

cause to approach her.   The record also reveals that counsel

objected twice during Akers' testimony regarding the



                               - 5 -
circumstances at the truck.    First, counsel objected and stated

that because McWilliams was not charged with prostitution, the

evidence was irrelevant.   The judge noted that Akers had not

mentioned prostitution in that particular testimony and allowed

the Commonwealth to proceed.   After Akers' further testimony that

McWilliams was pulling at her dress, counsel again objected on

relevancy grounds and stipulated that the arrest was based on

probable cause.   The judge ordered the Commonwealth to move on

and instructed the jury to disregard everything except that the

officer validly arrested McWilliams.    At the end of all the

evidence, the judge instructed the jury that "there might have

been some evidence of some other activity in this case but that

is not to be considered by you . . . ."
     "Evidence which bears upon and is pertinent to matters in

issue, and which tends to prove the offense, is relevant and

should be admitted."   Coe v. Commonwealth, 231 Va. 83, 87, 340

S.E.2d 820, 823 (1986).    However, the following rule is equally

well established:
             Evidence which has no tendency to prove
          guilt, but only serves to prejudice an
          accused, should be excluded on the ground of
          lack of relevancy. For evidence to be
          admissible it must relate and be confined to
          the matters in issue and tend to prove an
          offense or be pertinent thereto. Evidence of
          collateral facts or those incapable of
          affording any reasonable presumption or
          inference on matters in issue, because too
          remote or irrelevant, cannot be accepted in
          evidence.

Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208



                                - 6 -
(1967).   Evidence is prejudicial if "the implications it raised

tended to divert the minds of the jurors from the issues before

them and, thus, 'prevented the accused from having that character

of an impartial trial to which one is entitled.'"     Lewis v.

Commonwealth, 225 Va. 497, 501-02, 303 S.E.2d 890, 892 (1983)

(citation omitted).

     Evidence that McWilliams was engaging in sexual activity in

the truck or that McWilliams was a prostitute was not relevant to

the charge of possession of cocaine.     During the trial before the

jury, McWilliams did not raise the issue of the validity of the

arrest.   Indeed, she stipulated that the arrest was valid.

Moreover, the evidence was prejudicial because it had a tendency

to divert the jury's attention and cause the jury to base its

verdict upon improper grounds.    Thus, the trial judge erred in

failing to sustain McWilliams' first objection and allowing the

Commonwealth to proceed with the line of questioning that

elicited further testimony regarding the pre-arrest

circumstances.
     However, after McWilliams' second objection the judge

instructed the jury to "[d]isregard . . . anything other than the

[arrest] warrant."    In addition, at the end of the jury

instructions, the judge instructed the jury not to consider

"evidence of some other activity" in rendering its verdict.      "A

judgment will not be reversed for the improper admission of

evidence that a [judge] subsequently directs a jury to disregard



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because juries are presumed to follow prompt, explicit, and

curative instructions."    Beavers v. Commonwealth, 245 Va. 268,

280, 427 S.E.2d 411, 420 (1993).   The trial judge twice

instructed the jury to disregard the erroneously admitted

evidence in this case.    We cannot conclude on this record that

the jury did not follow the trial judge's instructions.

Accordingly, we find no reversible error.

                                                           Affirmed.




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