                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia


LEONARD RANDOLPH BROWN
                                            MEMORANDUM OPINION * BY
v.   Record No. 3489-01-2                    JUDGE LARRY G. ELDER
                                                  MAY 6, 2003
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Margaret P. Spencer, Judge

             William P. Irwin, V (Bowen, Bryant,
             Champlin & Carr, on brief), for appellant.

             Richard B. Smith, Senior Assistant Attorney
             General (Jerry W. Kilgore, Attorney General,
             on brief), for appellee.


     Leonard Randolph Brown (appellant) appeals from his jury

trial convictions for possession of a firearm by a convicted

felon and possession of a firearm while in possession of

cocaine. 1   On appeal, he contends the trial court committed

reversible error by admitting evidence of "alleged unadjudicated

criminal acts" involving the sale of drugs.     Assuming without

deciding that appellant preserved this assignment of error for

appeal, we hold the trial court's admission of evidence


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Appellant also was charged with possession of cocaine.         He
pleaded guilty to that offense and does not challenge his
conviction for that offense on appeal.
concerning appellant's prior sale of drugs constituted error.

However, we hold that error was harmless and affirm the

challenged convictions.

                                  I.

                             BACKGROUND

     On April 14, 2000, pursuant to a search warrant, Sergeant

Edward Capriglione, Detective Clarence Key, and other officers

searched both a particular residence and a "three-walled" shed

located in the backyard.   In the shed, the police found a

handgun and a loaded magazine.

     Inside the house, police found appellant and his brother,

Carlton Brown (Brown).    In a drawer in the desk in appellant's

bedroom, police found an ammunition clip that was "exactly the

same" as the one in the handgun found in the shed except that

one was "a little more worn."    In a large stack of papers atop

the desk, Sergeant Capriglione found a slip of paper on which

was written "Model L380, 380 caliber auto, 443625."   Those

notations matched the descriptive information contained on the

handgun found in the shed.   The last number on the piece of

paper matched the gun's serial number.    Beneath appellant's bed,

the police found devices for smoking illegal drugs, which

contained cocaine residue.   Appellant admitted the cocaine

residue was his and said he was a drug user.   Appellant's room

had an exit to the outside of the house.   The only door



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connecting appellant's room to the rest of the house "ha[d]

locks on it from [appellant's] []side."

     Police also arrested appellant's brother for possession of

a small amount of cocaine and possession of "a syringe,

typically associated with heroin use."

     When questioned by Detective Key, appellant denied being a

dealer but said, "I have dealt to support my habit."   Appellant

said he did not know how much money he "make[s] selling drugs"

but "that he had 20 hits of heroin earlier that day that he

sold."   Appellant admitted knowing the firearm was in the shed

but said it belonged to someone else.

     Brown, a convicted felon, testified for the Commonwealth

and identified the firearm found in the shed as belonging to

appellant.   Brown testified that he previously had reported to

police that appellant "deal[t] in . . . illegal drug" activity

in the house.

     Sergeant Capriglione confirmed that Brown had "contacted

the police department about a drug complaint" in February 2000.

Brown told Capriglione that appellant "was selling drugs out of

the residence" and that appellant kept heroin and firearms in

the shed behind the house.

     Appellant testified and disclaimed ownership of the gun.

He said he told Officer Key he thought the gun might belong to

someone named Buddy Miller.   Appellant was unable to explain how

an extra clip for the gun and a piece of paper bearing the gun's

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model, caliber and serial number came to be present in his

bedroom.

                                 II.

                              ANALYSIS

                                 A.

                           PROCEDURAL BAR

     The Commonwealth contends appellant's present assignment of

error is barred because he objected at trial only on the ground

that one portion of the evidence was "[irr]elevan[t]" and that a

second portion constituted the Commonwealth's "merely trying to

bolster the credibility" of Brown, who testified at trial.    It

contends neither of these objections covered appellant's present

claim that the evidence revealed other crimes and should not

have been admitted because it was highly prejudicial.

     The Commonwealth relies on Irving v. Commonwealth, 15

Va. App. 178, 422 S.E.2d 471 (1992) (en banc), in which the

judgment was affirmed by an evenly divided Court.    It is true

five judges in Irving took the position that a relevance

objection does not preserve for appeal the argument that other

crimes evidence was overly prejudicial.     Id. at 179, 422 S.E.2d

at 472.    However, an equal number of judges would have held to

the contrary.    Id. at 181, 422 S.E.2d at 473-74.   A judgment

that is affirmed by an evenly divided court carries no

precedential value.    See Pack v. Commonwealth, 6 Va. App. 434,

435 n.1, 368 S.E.2d 921, 921-22 n.1 (1988).    We assume without

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deciding, for purposes of this opinion only, that appellant's

relevance objection was sufficient to preserve for appeal his

challenge to Detective Key's testimony that appellant admitted

selling heroin and unspecified "drugs" on the day of his arrest

and on prior occasions, as well.

     We hold, however, that appellant's challenge to Sergeant

Capriglione's testimony regarding Brown's prior report to police

as "merely trying to bolster [Brown's] credibility" constituted

an objection that the testimony was improper rehabilitation.       It

did not encompass an objection that the testimony was irrelevant

"other crimes" evidence or was overly prejudicial.     Thus, this

objection was insufficient to preserve for appeal appellant's

challenge to Sergeant Capriglione's testimony about his February

2000 conversation with Brown.

                                 B.

         ADMISSION OF EVIDENCE THAT APPELLANT SOLD DRUGS

     Evidence ordinarily is admissible if it "is both material--

tending to prove a matter that is properly at issue in the

case--and relevant--tending to establish the proposition for

which it is offered."   Johnson v. Commonwealth, 2 Va. App. 598,

601, 347 S.E.2d 163, 165 (1986).      However, evidence of crimes or

other bad acts committed by the accused usually is incompetent

and inadmissible to prove the accused committed or likely

committed the particular crime charged.      See, e.g., Guill v.

Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998).

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This rule "is deeply rooted in Virginia common law," Tucker v.

Commonwealth, 17 Va. App. 520, 522, 438 S.E.2d 492, 493 (1993),

and exists to prevent "confusion of offenses . . . and a

suggestion of 'criminal propensity,' thus preserving the

'presumption of innocence,'" Crump v. Commonwealth, 13 Va. App.

286, 289, 411 S.E.2d 238, 240 (1991) (citations omitted).      Such

evidence of other acts may be admissible under limited

circumstances if (1) it is offered to prove "motive, intent,

plan, or scheme, or any other relevant element of the offense on

trial," Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572,

577 (1984), and (2) its relevance outweighs any prejudicial

effect, Ragland v. Commonwealth, 16 Va. App. 913, 918, 434

S.E.2d 675, 678 (1993).

     Here, although appellant pleaded guilty to a charge of

possessing cocaine, he entered a plea of not guilty to the

charge of possessing a firearm while in possession of cocaine in

violation of Code § 18.2-308.4.   Manifestly, appellant's

possession of cocaine was an element of the latter offense.

Thus, contrary to appellant's claim on brief that "[t]he only

issue before the jury was [appellant's] possession of the

firearm," the Commonwealth also was required to prove appellant

possessed cocaine, either actually or constructively.    "An

accused cannot by stipulation limit the Commonwealth's right to

prove its case. . . .   [T]he Commonwealth was not obliged to

have faith that the [fact finder] would be satisfied with any

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particular one or more of the items of proof.   Therefore, it was

entitled to utilize its entire arsenal."   Pittman v.

Commonwealth, 17 Va. App. 33, 35, 434 S.E.2d 694, 696 (1993).

     Notwithstanding our agreement with the general principle

that the Commonwealth was entitled to present all evidence

tending to prove that appellant possessed cocaine while he

possessed the firearm, the evidence appellant challenges did

not, in fact, prove appellant possessed cocaine.   The

Commonwealth proved, without objection from appellant, that he

possessed cocaine in the form of residue on smoking devices

found beneath his bed.   The evidence to which appellant

subsequently objected included no testimony that appellant

possessed cocaine.   Rather, it referred only to appellant's

possession and sale of unspecified "drugs" and "heroin."

          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.

Wilson v. Commonwealth, 16 Va. App. 213, 221, 429 S.E.2d 229,

234 (applying principles in context of error in admitting

evidence of prior sale of drugs to prove possession on occasion

charged was with intent to distribute), aff'd on reh'g en banc,

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


                               - 7 -
     Applying those principles here, we hold appellant's

admissions (1) that he "[had] dealt" unnamed drugs "to support

[his] habit" and (2) "that he had 20 hits of heroin . . . he

[had] sold" that day prior to the search were both irrelevant

and highly prejudicial.   The testimony that appellant admitted

possessing and selling unspecified drugs and heroin from the

residence was extremely prejudicial and was not "'so intimately

connected and blended with the main facts [regarding appellant's

possession and use of cocaine] . . . that they [could not] be

departed from with propriety.'"    Kirkpatrick v. Commonwealth,

211 Va. 269, 273, 176 S.E.2d 802, 806 (1970) (quoting Walker v.

Commonwealth, 28 Va. (1 Leigh) 574, 576 (1829)).

     For these reasons, we hold the trial court erred in

admitting Detective Key's testimony that appellant admitted

possessing and selling unspecified "drugs" and "heroin."

                                  C.

                      HARMLESSNESS OF ERROR

          [N]on-constitutional error is harmless when
          "[i]t plainly appears from the record and
          the evidence given at trial that the error
          did not affect the verdict." Code
          § 8.01-678 (emphasis added). . . . 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.

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

910, 911 (1991) (en banc).   Factors relevant in the harmless


                               - 8 -
error inquiry are "the importance of the witness' testimony in

the prosecution's case, whether the testimony was cumulative,

the presence or absence of evidence corroborating or

contradicting the testimony of a witness on material points,

. . . [and] the overall strength of the prosecution's case."

Maynard v. Commonwealth, 11 Va. App. 437, 448, 399 S.E.2d 635,

641-42 (1990) (en banc) (quoting Delaware v. VanArsdall, 475

U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986))

(applying principles in context of constitutional error).

     Here, the improperly admitted evidence was appellant's

statement to Detective Key that he had sold heroin and

unspecified "drugs" on the day of his arrest and on prior

occasions, as well.   However, appellant admitted that he

possessed cocaine in the form of residue on one or more smoking

devices found beneath his bed, and other evidence in the record

established that appellant possessed and sold heroin and

unspecified drugs.    Brown testified that, prior to the search of

the house in which he and appellant resided, Brown told Sergeant

Capriglione to "talk to [appellant]" about "illegal drug

activity in my mother's house."   Sergeant Capriglione confirmed

Brown reported to police in February 2000--more than six weeks

before the search at issue and, therefore, presumably before

Brown had any motive to fabricate--that "[appellant] was selling

drugs [including heroin] out of the residence . . . where

[Brown] lived with his mother and [appellant]."

                                - 9 -
     Further, because appellant admitted possessing the cocaine

residue found on the smoking devices, the only issue truly in

dispute was whether appellant constructively possessed the

firearm found in the shed.   The Commonwealth's evidence, both

direct and circumstantial, proved the gun belonged to appellant.

Brown identified the gun as appellant's and told Capriglione in

February 2000 that appellant kept guns in the shed.   In

appellant's bedroom, which had an outside entrance and was

connected to the rest of the house by a door that locked from

inside appellant's room, police found an extra clip for the gun

and a piece of paper bearing the weapon's make, model and serial

number.   Finally, although appellant claimed the gun belonged to

someone else, he admitted knowing it was in the shed.

     Thus, the Commonwealth's evidence of guilt was strong, and

the admission of appellant's statement to Detective Key that he

sold heroin and other drugs was harmless.

                               III.

     For these reasons, we hold the trial court's admission of

the challenged other crimes evidence constituted error but that

the error was harmless.   Thus, we affirm the challenged

convictions.

                                                           Affirmed.




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