                                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan
Argued at Alexandria, Virginia


JOHN D. CREEKMORE
                                                        MEMORANDUM OPINION∗ BY
v.     Record No. 0358-03-4                         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                                 JULY 13, 2004
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF CLARKE COUNTY
                                 John R. Prosser, Judge

                S. Jane Chittom, Appellate Defender (Public Defender Commission,
                on brief), for appellant.

                Susan L. Parrish, Assistant Attorney General (Jerry W. Kilgore,
                Attorney General, on brief), for appellee.


       John D. Creekmore (appellant) was convicted in a bench trial of distribution of cocaine in

violation of Code § 18.2-248. Appellant contends that the trial court erred in admitting evidence

that on other occasions he sold cocaine to Buddy Vanhuse (Vanhuse), a convicted felon who

agreed to assist with the investigation of appellant’s alleged cocaine distribution. Assuming

without deciding that the admission of the disputed evidence was erroneous, any such error was

harmless, and we affirm.

                                        I. BACKGROUND

       Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        So viewed, the evidence established that Clarke County Investigator Anthony Roper

(Roper) arranged a controlled purchase of cocaine at Vanhuse’s apartment. After Roper

searched Vanhuse and his apartment for drugs, he gave Vanhuse a recording device and $400 to

purchase cocaine. He set up a video camera across the street. When appellant arrived at the

apartment, appellant and Vanhuse “set up plans for even more after that,” and Vanhuse gave

appellant money in exchange for rock cocaine. The sale was recorded on both the audio and

video recorders, although the voice-recording device was unclear at times.

        At trial, Vanhuse testified to the events that occurred during the controlled buy. Over

appellant’s objection, the trial court admitted Vanhuse’s testimony that appellant had supplied

him with cocaine both before and after the controlled buy, for the limited purpose of establishing

a pattern, motive, or course of conduct. Appellant additionally testified that he went to

Vanhuse’s apartment that day because the two females that accompanied him wanted to purchase

a television and stereo. Before pronouncing guilt, the trial court stated that considering the

audiotape of the drug sale played for the court and Vanhuse’s testimony regarding the sale, “one

can . . . conclude that this is the discussion that took place with respect to the drug transaction.”

Appellant was convicted of distribution of cocaine in violation of Code § 18.2-248 and sentenced

to serve ten years with six years suspended.

                                           II. ANALYSIS

        At trial, appellant objected to Vanhuse’s testimony that appellant had earlier sold him

cocaine on other occasions at his home and work, before and after the transaction at issue. The

trial court overruled the objection, stating that:

                That objection is overruled to the extent that the Court will not
                consider the material for any generally prejudicial purpose, but
                only to establish a pattern, a motive, or a course of plan of [sic]
                conduct and I will admit it for that limited purpose.



                                                     -2-
Vanhuse’s testimony then continued:

               Q: What was your pattern with respect to purchasing cocaine from
               Mr. Creekmore?

               A: Sometimes it was . . . it was on and off. There was a few
               times before and even after this.

               Q: You are going to have to speak up.

               A: There was a few times before this occasion and even
               afterwards, there was a couple . . . [.]

       Appellant contends that this evidence failed to meet any of the exceptions to the general

rule that evidence of prior crimes is inadmissible and that its prejudicial effect outweighed its

probative value. Assuming, without deciding, that the trial court erred in admitting the testimony

of prior cocaine sales, we hold that the error is harmless.

       The standard for non-constitutional error is established in Virginia’s harmless error

statute, Code § 8.01-678, which provides, in pertinent part:

               When it plainly appears from the record and the evidence given at
               trial that the parties have had a fair trial on the merits and
               substantial justice has been reached, no judgment shall be arrested
               or reversed . . . [f]or any . . . defect, imperfection, or omission in
               the record, or for any error committed on the trial.

Additionally, Code § 8.01-678 has been applied in both criminal and civil cases:

               In a criminal case, it is implicit that, in order to determine whether
               there has been a fair trial on the merits and whether substantial
               justice has been reached, a reviewing court must decide whether
               the alleged error substantially influenced the jury. If it did not, the
               error is harmless.

Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (internal citations and

quotations omitted). Our Supreme Court has applied the following standard adopted in

Kotteakos v. United States, 328 U.S. 750 (1946), to non-constitutional error:

               If, when all is said and done, the conviction is sure that the error
               did not influence the jury, or had but very slight effect, the verdict
               and the judgment should stand . . . . But if one cannot say, with fair
                                                -3-
               assurance, after pondering all that happened without stripping the
               erroneous action from the whole, that the judgment was not
               substantially swayed by the error, it is impossible to conclude that
               substantial rights were not affected . . . . If so, or if one is left in
               grave doubt, the conviction cannot stand.

Id. at 764-65 (internal citations omitted).

       Applying this standard and Code § 8.01-678 to the instant case, we can say that it plainly

appears that appellant had a fair trial and the verdict and judgment were not substantially

affected by the admission of appellant’s prior drug sales. In reaching its verdict, the trial judge

specifically cited Roper’s testimony that he placed a wire on Vanhuse and searched him for

drugs prior to the transaction, the information culled from the audiotape of the drug transaction,

the videotape of appellant entering Vanhuse’s residence, and Vanhuse’s testimony concerning

the sale. The trial court in its findings gave no weight to the disputed testimony, and clearly

disbelieved the version of events as described by appellant. We therefore hold that any error is

harmless.

       Accordingly, we affirm the judgment of the trial court.

                                                                                          Affirmed.




                                                 -4-
Benton, J., dissenting.

                        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). Thus, in cases

involving distribution of narcotics, the Supreme Court has barred evidence of a defendant’s prior

distribution of narcotics because: (i) it is not “probative of . . . intent to distribute drugs” on a

later occasion, Donahue v. Commonwealth, 225 Va. 145, 154, 300 S.E.2d 768, 773 (1983); (ii) it

cannot be considered to be “evidence showing a knowledge of ‘this particular transaction . . . or

what the expedition was about,’” Eccles v. Commonwealth, 214 Va. 20, 22, 197 S.E.2d 332, 333

(1973) (per curiam); and (iii) it is inadmissible as proof of a pattern or “general scheme,” Boyd

v. Commonwealth, 213 Va. 52, 53, 189 S.E.2d 359, 359 (1972) (per curiam).

        Applying these cases, we have ruled as follows:

                        The Supreme Court has been particularly careful to
                recognize the danger of misusing other crimes evidence in drug-
                related charges. Evidence that an accused has committed or has
                been convicted of other drug-related crimes diverts the fact
                finder’s attention from the facts and charges at issue. Also, such
                evidence calls upon an accused to defend himself against crimes
                not charged in the indictment. Proving that the accused has
                committed other similar crimes raises considerable risk that such
                evidence will be misapplied by the fact finder. Great likelihood
                exists that a fact finder will rush to the impermissible conclusion
                that, because the accused sold drugs on a prior occasion, he
                probably is the person who possessed the seized drugs and
                probably intended to sell those drugs in this instance, rather than
                use them. Furthermore, simply proving that an accused has on a
                prior occasion committed other crimes of a similar nature has a
                tendency to shift the burden of proof to an accused to prove his
                innocence, rather than requiring the Commonwealth to prove each
                element of the offense beyond a reasonable doubt.




                                                  -5-
Wilson v. Commonwealth, 16 Va. App. 213, 221, 429 S.E.2d 229, 234, aff’d en banc, 17

Va. App. 248, 436 S.E.2d 193 (1993) (citations omitted).

               In the absence of . . . showing [a causal connection between a prior
               crime and the offense being prosecuted], the evidence can serve
               but one purpose: to show that the defendant has a propensity to
               commit crimes or a particular type of crime and, therefore,
               probably committed the offense for which he is being tried. The
               admission of such evidence for that purpose is prohibited.

Cooper v. Commonwealth, 31 Va. App. 643, 647-48, 525 S.E.2d 72, 74 (2000). For these

reasons, I would hold that the trial judge erred in admitting testimony from the informant, who

possessed the narcotics, that on an earlier occasion John D. Creekmore had supplied him with

narcotics.

       The error is not harmless. The Supreme Court of Virginia has “adopt[ed] the Kotteakos

[v. United States, 328 U.S. 750 (1946),] harmless-error test” for measuring error under Code

§ 8.01-678. Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 732 (2001). Applying

that test, the United States Supreme Court has held that “the principle of Kotteakos [means] that

when an error’s natural effect is to prejudice substantial rights and the court is in grave doubt

about the harmlessness of that error, the error must be treated as if it had a ‘substantial and

injurious effect’ on the verdict.” O’Neal v. McAninch, 513 U.S. 432, 444 (1995) (citing

Kotteakos, 328 U.S. at 764-65, 776). Moreover, when a trial error has been shown on direct

appeal from a conviction, the government bears the burden of proving harmlessness under this

standard. See id. at 437. Indeed, the Supreme Court of Virginia has held that “error will be

presumed to be prejudicial unless it plainly appears that it could not have affected the result.”

Caldwell v. Commonwealth, 221 Va. 291, 296, 269 S.E.2d 811, 814 (1980).

       The record does not contain a video recording showing a drug transaction occurred. The

video recording merely showed Creekmore and two women entering an apartment building from

the parking lot. In addition, the trial judge found that the audio record, which contained rustling
                                                -6-
noises and audio sounds from a television, was “not great quality” and merely “seem[ed] to

indicate some numbers being thrown around, four, five, and a six pack.”

       “[A]lthough this was a bench trial, when the trial judge erroneously and unconditionally

admits prejudicial evidence, we cannot presume that the trial judge disregarded that evidence

which he ruled to have probative value.” Wilson, 16 Va. App. at 223, 429 S.E.2d at 235. “Since

we have no way of knowing the effect of the . . . admission of testimony as to defendant’s prior

criminal acts . . . had upon the mind[] of the [trier of fact], we cannot say that the error was not

prejudicial.” Eccles, 214 Va. at 22-23, 197 S.E.2d at 333. The principle is long standing that

error is not harmless when the disputed evidence “may well have affected the [fact finder’s]

decision.” Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978).

       For these reasons, I would reverse the conviction and remand for a new trial.




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