                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia


GERALD LEE PAYNE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2073-99-2                 JUDGE SAM W. COLEMAN III
                                              DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
               Arthur W. Sinclair, Judge Designate

           Vanessa H. Watson, Assistant Public Defender,
           (Office of the Public Defender, on brief),
           for appellant.

           Amy L. Marshall, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Gerald Lee Payne was convicted in a jury trial of

distribution of cocaine.    On appeal, Payne argues that the trial

court erred by admitting into evidence statements he made to the

arresting officer concerning his prior drug use.   Payne contends

that the statements were inadmissible evidence of prior bad acts

because they were irrelevant to prove an element of the charged

offense.   He argues that the Commonwealth failed to show a causal

relation or logical connection between his prior drug use and the

charged offense sufficient to permit introduction of the evidence.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
We agree.    Accordingly, we reverse the conviction and remand the

case to the trial court.

                              BACKGROUND

     Charlottesville Police Officer Paul Best was on routine foot

patrol at approximately 12:25 p.m. when he observed Payne engaged

in what Best believed to be a hand-to-hand drug transaction.      Best

saw Payne and Wilbur Johnson standing in the road of a "known drug

area" looking at Johnson's right hand, which was palm-side up.

Best saw Payne place a small plastic bag containing an off-white

substance into Johnson's hand.   Best did not see any money

exchange hands.    Johnson and Payne briefly looked at the item

before discovering that Best was watching them.   Payne then pushed

Johnson's hand into Johnson's stomach and walked away.

     Best approached Johnson, told Johnson that he saw the

cocaine, and requested that Johnson give it to him.   After Johnson

gave Best the plastic bag, Johnson was arrested, handcuffed, and

placed in a police vehicle.   As Best was talking to Johnson, Best

observed Payne walking away but glancing back several times in

their direction.   Best apprehended Payne and arrested and

handcuffed him.    After the arrest, Payne told Best that "he

[Payne] didn't understand how he could be arrested for

[distributing] cocaine when Mr. Johnson didn't give him any money

for it."    Payne also told Best that "he [Payne] had used crack

cocaine in the past, that he had used it the night before and that


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he had used it about three times during the month of October."      At

trial, Officer Best was permitted to testify, over Payne's

objection, what Payne had told him when arrested about having used

cocaine in the past, having used it the night before and about

three times during the month of October, and about no money having

been exchanged for the cocaine.

     Payne testified, on the other hand, to a different version of

what had occurred.   He stated that he had seen Johnson on his

bicycle stopped in the street.    When Payne approached, Johnson

showed him the plastic bag, which Johnson said he had found in the

street.   Johnson handed Payne the bag and asked Payne if he

thought the contents "was real."    Payne replied he did not know

and handed the bag back to Johnson.   Payne denied having seen Best

watching him.   Payne also denied asking Best how he could be

arrested for distributing cocaine when he did not receive any

money from Johnson, and Payne denied telling Best that he used

cocaine in the past.

     The substance seized in the plastic bag was tested and

determined to be cocaine.

                              ANALYSIS

     "[I]n 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


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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).   However, "[e]vidence

of 'other crimes' is relevant and admissible if it tends to

prove any element of the offense charged.   Thus, evidence of

other crimes is allowed when it tends to prove motive, intent,

or knowledge of the defendant."    Guill v. Commonwealth, 255 Va.

134, 138, 495 S.E.2d 489, 491 (1998) (citation omitted).      "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 on reh'g en banc, 17 Va. App. 248, 436 S.E.2d 193

(1993) (citation omitted).   "'[T]he responsibility for balancing

. . . probative value and prejudice rests in the sound

discretion of the trial court,' and its decision 'will not be

disturbed on appeal in the absence of a clear abuse.'"     Wilkins

v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 443

(1994) (en banc) (quoting Ferrell v. Commonwealth, 11 Va. App.

380, 390, 399 S.E.2d 614, 620 (1990)).

     The Commonwealth argues that Payne's statement regarding his

prior drug use was admissible because it was relevant to prove

that Payne had knowledge of the nature and character of the


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substance he distributed, which was an element of the offense the

Commonwealth was required to prove.    We disagree.

     The Supreme Court has addressed the relevance and

admissibility of prior drug-related conduct to prove an element of

the charged offense.   See Boyd v. Commonwealth, 213 Va. 52, 53,

189 S.E.2d 359, 359-60 (1972) (per curiam); Eccles v.

Commonwealth, 214 Va. 20, 22, 197 S.E.2d 332, 333 (1973) (per

curiam); Donahue v. Commonwealth, 225 Va. 145, 154-55, 300 S.E.2d

768, 773-74 (1983).

     In Boyd, the defendant was charged with possession and

distribution of heroin after he sold two capsules of heroin to an

undercover police officer.    At trial, the officer was permitted to

testify that a few days before the charged offense he observed

Boyd making two similar drug sales.    The trial court instructed

the jury that the evidence of the prior offenses may not be

considered as evidence of the defendant's guilt of the charged

offense, but it may be considered as evidence "of whether the

prior offenses constituted part of a general scheme, of which the

crime charged is a part."    The Supreme Court reversed the

defendant's conviction, holding that the evidence of the prior

sales was unrelated to the charged offense and the evidence of the

prior sales did not fall within an exception to the general rule

excluding prior crimes evidence.   The Court concluded that because

the evidence that Boyd had committed other crimes was not


                               - 5 -
relevant, the prejudicial effect of the evidence outweighed its

probative value.

     In Eccles, the defendant was charged with selling marijuana.

The trial court admitted evidence of the defendant's having been

seen smoking marijuana on prior occasions in order to prove that

he was familiar with marijuana and knew "what the contents of

these bags might be or what the expedition was about."   The

Supreme Court, relying on Boyd, held that evidence of the

defendant's prior drug use was inadmissible to prove the defendant

knew that the substance he possessed was marijuana.   The fact that

Eccles had previously used marijuana and had knowledge of the

nature and character of marijuana was unrelated to the charged

offense and did not tend to prove that Eccles knew that the

substance in the bag was marijuana or that a sale of marijuana was

being made.   The Court reversed the defendant's conviction and

remanded, stating "[s]ince we have no way of knowing the effect of

the court's admission of testimony as to defendant's prior

criminal acts of smoking marijuana had upon the minds of the jury,

we cannot say that the error was not prejudicial."    Eccles, 214

Va. at 22-23, 197 S.E.2d at 333.

     Similarly, in Donahue the defendant was charged with

possession with intent to distribute PCP after police officers

executed a search warrant at the residence she occupied with her

"husband" and found PCP in the residence.   At trial, the court


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admitted evidence that on a prior occasion PCP had been seized

from her when she was arrested along with others who were seen

handling PCP in an automobile.   The trial judge also admitted

evidence that when she was arrested for the prior possession of

PCP, she confessed to selling it.     The court admitted evidence of

the prior possession to prove that she was aware of the presence

and nature of the PCP seized from her residence and knowingly

possessed it with the intent to distribute.    In reversing the

conviction for erroneously admitting the other crimes evidence,

the Supreme Court held that the evidence of prior possession of

PCP was unrelated to the charged crime and did not tend to prove

that Donahue possessed PCP with the intent to distribute.    See

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

     This case is controlled by the Supreme Court's decisions in

Boyd, Eccles, and Donahue.   Evidence of the defendant's prior drug

use was not probative of whether he distributed cocaine to Johnson

on the occasion observed by Officer Best.    The evidence in no way

substantiates the events observed by Officer Best.    It has no

tendency to prove that Payne made the distribution.    Proof that

Payne admitted using cocaine on prior recent occasions proves only

that he has a propensity to use cocaine and as such the evidence

is highly prejudicial, particularly when compared to any minimal

incidental value the evidence has in establishing that Payne may

be familiar with the nature of a particular drug.    The evidence


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that Payne had a propensity to use and possess cocaine is highly

prejudicial in that it strongly suggests to the jury that Payne

probably committed the charged offense.

     We reject the Commonwealth's argument that because the

prosecution is required to prove that a defendant knows the nature

and character of the substance he possessed, the Commonwealth is

entitled to prove knowledge by showing prior use and familiarity

with the same drug.    If the Commonwealth were allowed to prove, as

an exception to the general rule prohibiting other crimes

evidence, that an accused knew the nature and character of the

substance he is charged with possessing because he possessed the

same substance on a prior occasion, the exception would swallow

the rule in drug cases and evidence of possession of the same drug

on other occasions would be admissible in every case.   See Cooper

v. Commonwealth, 31 Va. App. 643, 648-49, 525 S.E.2d 72, 74-75

(2000) (en banc) (holding that evidence that defendant had sold

imitation crack cocaine two months before the charged offense was

"a separate act without logical or natural connection with

[defendant's] present charge of possession of imitation cocaine

with intent to distribute" and, thus, inadmissible).

     Our Supreme Court expressly rejected a similar claim advanced

by the Commonwealth in Donahue in which the Commonwealth relied

upon the Fourth Circuit case of United States v. Samuel, 431 F.2d

610 (4th Cir. 1970).   The Donahue decision rejected the holding in


                               - 8 -
Samuel that evidence of an accused's prior offense to prove that

he had knowledge of the character and presence of a specific drug

was admissible in the prosecution's case-in-chief to prove "lack

of innocent action" by the defendant.   By rejecting Samuel, our

Supreme Court has said that the Commonwealth may not prove in

chief that an accused has knowledge of the nature and character of

the drug possessed to refute a claim or defense of "innocent

action," which is essentially the claim advanced by Payne.

     For the foregoing reasons, we hold that the trial court erred

by admitting the evidence that Payne used cocaine the night before

and three times during the month of October.    We cannot conclude,

without usurping the role of the fact finder, that the trial

court's error in admitting the evidence was harmless.    See

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc).

     Accordingly, we reverse the conviction and remand the case to

the trial court for such further proceedings as the Commonwealth

may elect.

                                               Reversed and remanded.




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