                     COURT OF APPEALS OF VIRGINIA


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

BENIAH ABEL ALLEN
                                           MEMORANDUM OPINION * BY
v.   Record No. 1745-95-2                 JUDGE JAMES W. BENTON, JR.
                                              SEPTEMBER 3, 1996
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     William R. Shelton, Judge

           Christopher F. Cowan (Cowan & North, on
           brief), for appellant.
           Leah A. Darron, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief) for appellee.



      A jury convicted Beniah Abel Allen of possession of cocaine

in violation of Code § 18.2-250.       On this appeal, he contends

that the trial judge erred in allowing evidence of his heroin use

and permitting a detective to testify that his behavior was

consistent with cocaine use.    He further contends that the

evidence did not prove beyond a reasonable doubt that he

possessed cocaine.    Because the admission of evidence concerning

his addiction to heroin was irrelevant and prejudicial, we

reverse the conviction.

                                  I.

      Allen was indicted and tried for possession of cocaine.

During opening statements at trial, and over Allen's objection,

the prosecutor told the jury that Allen admitted injecting heroin
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
on the day of his arrest.    The Commonwealth's evidence proved

that when Chesterfield County police officers executed a search

warrant at a residence, they discovered Faith Franklin, the

lessee of the residence, standing in the living room.      Allen was

lying facedown on a bed in another room.    During a search of the

residence, the police found in the living room closet a tin foil

packet containing .05 grams of cocaine.

        After a detective read Miranda warnings to Franklin and

Allen, Allen talked with the detective.    Allen said that he did

not live at the house and denied that any drugs were in the

house.    Allen's speech was slurred, and he was unsteady on his

feet.    He did not have narcotics on his person.
        The detective next questioned Franklin.    She admitted that

she used cocaine.    During the questioning, Franklin removed from

the underpants that she was wearing a tube she used to smoke

crack cocaine.    The police arrested Franklin three days later for

possession of cocaine.    She pled guilty to possession of both the

cocaine residue in the tube and the cocaine in the closet.

        After Franklin produced the tube the detective questioned

Allen again.    He testified that Allen admitted having smoked

crack cocaine for several years but claimed that he now used

heroin and "that heroin was his addiction."       The detective

further testified that Allen said "he shoots heroin often" and

then showed needle marks on the back of his hand.      The detective

said that Allen also admitted buying cocaine earlier that day and



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said that he already had smoked it with Franklin.

     The detective further testified that Allen's eyes appeared

bloodshot and watery, his speech was slurred, and his balance

unstable.    He also testified that Allen's physical appearance and

demeanor were consistent with that of a person under the

influence of cocaine.

     In Allen's defense, Franklin testified to purchasing cocaine

earlier that day, smoking all of it, and then hiding the "stem"

in her panties.   She stated that she did not smoke cocaine with

Allen on the day of the search and that she last smoked cocaine

at 8 p.m., before Allen arrived.   She testified that Allen, who

did not live at the house, arrived at her house five minutes

before the execution of the search warrant and went directly to

the bedroom.   She also testified that she had never given Allen

any reason to believe that she smoked or hid cocaine in her

residence.
     The jury found Allen guilty of possession of cocaine.     The

trial judge imposed the jury's recommended sentence of eight

years.

                                 II.

     Allen contends that because the evidence of heroin use was

irrelevant to the question whether he possessed cocaine and was

highly prejudicial, the trial judge should have barred the

testimony.   In response, the Commonwealth states that Allen is

not entitled to have his statement sanitized and that evidence of




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past heroin use is indeed relevant to the possession of cocaine.

     "The general rule is well established that in a criminal

prosecution, proof which shows or tends to show that the accused

is guilty of the commission of other crimes and offenses at other

times, even though they are of the same nature as the one charged

in the indictment, is incompetent and inadmissible for the

purpose of showing the commission of the particular crime

charged."   Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176

S.E.2d 802, 805 (1970).
             To be admissible, evidence must relate and
          be confined to matters in issue, and it must
          tend to prove or disprove these matters or be
          pertinent to them. It is fundamental that
          evidence of collateral facts or those
          incapable of affording any reasonable
          presumption or inference on the matter in
          issue because too remote or irrelevant cannot
          be accepted in evidence. Such evidence tends
          to divert the attention of the jurors to
          immaterial matters. If it has to do with
          other misconduct or other crimes committed by
          accused, it not only diverts the attention of
          the jurors, but may tend to prejudice them
          towards accused.

Boggs v. Commonwealth, 199 Va. 478, 486, 100 S.E.2d 766, 772

(1957)(citation omitted).   In particular, "[e]vidence of prior

drug-related conduct is irrelevant and inadmissible and does not

fall within one of the Kirkpatrick exceptions where there has

been no showing of an intimate relation or connection between the

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

Commonwealth, 16 Va. App. 213, 222, 429 S.E.2d 229, 234-35, aff'd
en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993).




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     In an earlier case, this Court rejected the Commonwealth's

argument that when the accused makes an oral statement to the

police, the entire statement, including irrelevant matters, is

admissible as evidence.     See Pierce v. Commonwealth, 2 Va. App.

383, 345 S.E.2d 1 (1986).    We ruled that when "[t]he

objectionable portion of the statement can easily be separated

from the remainder of the admission without adverse effect," the

trial judge should admit "only that part relevant and material to

the issue."   Id. at 391, 345 S.E.2d at 5.

     Following Pierce this Court also ruled as follows:
             Where evidence has little or no probative
          value and has the potential for being very
          prejudicial, such as showing unrelated
          crimes, it is error for the trial court not
          to redact the prejudicial evidence, unless
          the evidence is inextricably connected to the
          other evidence or to do so would mislead the
          fact finder. Where the "objectionable
          portion of the statement [could] easily be
          separated from the remainder of the admission
          without adverse effect," it is error for the
          trial court not to do so, and if the
          prejudice caused by admitting the evidence
          outweighs its probative value, the error will
          be reversible.

Ascher v. Commonwealth, 12 Va. App. 1105, 1119, 408 S.E.2d 906,

915 (1991), cert. denied, 506 U.S. 865 (1992)(citation omitted).

     The trial judge could easily have barred any testimony

regarding Allen's heroin use.    Allen first raised the issue of

the statement in a motion in limine.     Without hearing from the

prosecutor concerning the relevance of the statement, the trial

judge ruled that "statements by the defendant are always




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admissible."    Thus, during opening statement, the prosecutor

informed the jury of Allen's heroin use.    Later, during the

Commonwealth's case-in-chief, the detective paraphrased Allen's

statements regarding heroin use.

        The Commonwealth has not articulated a reason why the heroin

use was probative of whether Allen possessed cocaine.       Allen's

heroin addiction and the needle marks on his arm did not tend to

prove whether he possessed the cocaine found in the residence.

Moreover, unlike Williams v. Commonwealth, 11 Va. App. 149, 396

S.E.2d 860 (1990), Allen's statement was not a verbatim recording

and the question of the statement's voluntariness was not at

issue.    11 Va. App. at 152, 396 S.E.2d at 862.   Nothing in the

record in this case indicates that the "objectionable portion of

[Allen's] statement [could not have been] easily . . . separated

from the remainder of the admission without adverse effect."

Pierce, 2 Va. App. at 391, 345 S.E.2d at 5.

        Allen's prior use of heroin was irrelevant.   See Donahue v.
Commonwealth, 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983).

Irrelevant evidence is inadmissible.     Bunting v. Commonwealth,

208 Va. 309, 314, 157 S.E.2d 204, 208 (1967).      Furthermore, the

evidence was highly prejudicial because it proved Allen to be an

admitted heroin addict and allowed the jury to improperly infer

his guilt because of his propensity to possess and use another

drug.     See Donahue, 225 Va. at 156, 300 S.E.2d at 774.

Considering that the trial judge could easily have barred the



                                 - 6 -
evidence of heroin use and such evidence was irrelevant and

highly prejudicial, we hold that the trial judge erred in

admitting the evidence.

                                 III.

        "Only when trial error had no effect upon the outcome of the

trial can the error have caused no prejudice and be harmless."

Henshaw v. Commonwealth, 19 Va. App. 338, 347, 451 S.E.2d 415,

420 (1994).    This error was not harmless.   During the

prosecutor's opening statement and the detective's testimony, the

jury learned of Allen's heroin use and addiction.    The evidence

not only branded Allen a heroin addict, but also could have been

the basis of an impermissible propensity inference.    However,

Franklin testified that she did not smoke cocaine with Allen that

evening.    She also testified that she alone last smoked from the

tube.    If the jury chose to believe Franklin's testimony and did

not find Allen responsible for the cocaine in the closet, it

could have found that the evidence was not sufficient to find him

guilty of cocaine possession.
        "'Since we have no way of knowing the effect the court's

admission of testimony as to defendant's prior criminal acts

. . . had upon the minds of the jury, we cannot say that the

error was not prejudicial.'"     Donahue, 225 Va. at 156, 300 S.E.2d

at 774 (citation omitted).    "The jury was clearly exposed to

improper, inflammatory and prejudicial evidence and suggestion

and we are unable to find that it 'plainly appears from the




                                 - 7 -
record and the evidence' that this error 'did not affect the

verdict.'"   Gravely v. Commonwealth, 13 Va. App. 560, 564, 414

S.E.2d 190, 193 (1992)(citations omitted).




                               - 8 -
                                  IV.

     Allen also asserts that the detective impermissibly

testified to an ultimate issue of fact.    The ultimate issue of

fact was whether Allen possessed the cocaine.    The detective

testified only that Allen's "demeanor . . . was consistent with

what [he had] observed in others who have been under the

influence of cocaine."    That testimony was not an opinion on the

ultimate issue.
     An accused's demeanor is not an element of Code § 18.2-250.

Furthermore, the detective never testified that Allen was

actually under the influence of cocaine.    A difference exists

between an expert's opinion that a person is under the influence

of a drug or that a person's conduct is consistent with someone

under the influence.     See Davis v. Commonwealth, 12 Va. App. 728,

406 S.E.2d 922 (1991)(expert's opinion that an amount of

marijuana was inconsistent with an intent to distribute did not

constitute an impermissible comment on an ultimate issue of

fact); Llamera v. Commonwealth, 243 Va. 262, 414 S.E.2d 597
(1992)(whether quantity of cocaine would suggest an intent to

distribute was an ultimate issue of fact).    The testimony in this

case did not violate the rule prohibiting comment upon the

ultimate issue in fact.

     We do not reach Allen's argument concerning the sufficiency

of the evidence because the admission of his statements regarding

his heroin use is reversible error.




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         Reversed and remanded.




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