                     COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia


KEITH A. CARPENTER
                                         MEMORANDUM OPINION * BY
v.         Record No. 2842-97-4          JUDGE DONALD W. LEMONS
                                            DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Michael P. McWeeny, Judge
           M. Dale Phelps (Ann H. Potter, Assistant
           Public Defender; Office of the Public
           Defender, on brief), for appellant.

           Daniel J. Munroe, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



     Keith A. Carpenter appeals his conviction for driving after

having been declared an habitual offender as a second or

subsequent offense.    He alleges that the trial court erred by

admitting evidence of his consumption of alcoholic beverages and

evidence of the presence of alcoholic beverages in the truck he

was driving.    Finding no error, we affirm the jury's verdict and

the trial court's order of conviction.

     On April 23, 1997 at 2:00 a.m., Fairfax County Police

Officer Jeffrey Snodgrass noticed a pickup truck being operated

erratically.    The officer followed the truck and observed it

cross over traffic lines approximately 25 times in a three-mile

stretch.   The vehicle did not stop when Officer Snodgrass first
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
activated his emergency lights.

        While illuminated by the police car's high beam headlights

and accessory spotlight, the vehicle stopped and Carpenter exited

the truck from the driver's seat and looked at the officer.      The

officer ordered him back into the truck, but Carpenter ran from

the scene.    After a chase in which the officer used pepper spray,

Carpenter was apprehended and placed under arrest.    The officer

noticed a "strong of odor of alcoholic beverage" from Carpenter.

When asked for his name and personal information, Carpenter

said, "no comment."    The officer retrieved an ID card in the name

of Keith Carpenter from Carpenter's pocket.    The officer saw no

other person associated with the truck that evening.
        At trial, Officer Lawrence Henderson testified that he

responded to the scene and found three beer cans inside the blue

Chevrolet truck.    One can was open and empty, one was open in the

cup holder by the driver's seat and about three-quarters full,

and the third was unopened on the bench seat in the back.       The

second and third cans were cold to the touch.

        Yosuf Mir testified on Carpenter's behalf and claimed

ownership of the truck.    He stated that on that evening he had

given the keys to his truck to his nephew, Khalid Seyed.    He said

that he saw Seyed drive the truck away that evening with

Carpenter as his passenger.    Mir testified that the truck was

difficult to steer and that the passenger door was not easy to

open.




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     Khalid Seyed, Carpenter's co-worker, testified that he and

Carpenter had gone to meet a potential customer on the evening of

April 22, 1997.    He said that he was driving Mir's truck when he

noticed a police officer behind him.      He said that he stopped,

jumped out and hid underneath the truck, where he remained until

he saw Carpenter run away with the police officer in pursuit.

     Carpenter testified that he was a passenger in the truck.

He stated that he had taken anti-depressant medication earlier

that evening and was sleeping on the front seat when Seyed said

"police."    He said that he observed Seyed get out of the truck

and run away.    He testified that he ran away as well because he

was on probation and did not want to get in trouble for

"nothing."
     "A trial court has broad discretion in determining whether

evidence is admissible, and its ruling will not be disturbed

absent an abuse of discretion."     Miller v. Commonwealth, 15 Va.

App. 301, 304, 422 S.E.2d 795, 797 (1992).      Evidence is relevant

if it has "any tendency to establish a fact which is properly at

issue."     Wise v. Commonwealth, 6 Va. App. 178, 187, 367 S.E.2d

197, 202-03 (1988); see generally C. Friend, The Law of Evidence

in Virginia § 11-1 (4th ed. 1993) ("[E]vidence is relevant if it

tends to establish the proposition for which it is offered.     If

it has any probative value, however slight - i.e., if it has any

tendency whatsoever to prove or disprove the point upon which it

is introduced - it is relevant.").       Although generally




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inadmissible, evidence tending to show an accused committed other

bad acts at other times is admissible "if it tends to prove any

relevant element of the offense charged," so long as its

"legitimate probative value outweighs the incidental prejudice to

the accused."   Woodfin v. Commonwealth, 236 Va. 89, 95, 372

S.E.2d 377, 380-81 (1988) (citations omitted).

     Carpenter denied that he was operating the truck.      Operating

a motor vehicle is an essential element of the offense of driving

after having being declared an habitual offender.   See Code

§ 46.2-357.   In addition to the officer's testimony that

Carpenter was the only person associated with the truck at the

scene of the arrest, the Commonwealth was entitled to offer proof

of this essential element by introducing evidence that:

     1.   the officer saw the vehicle being driven in a manner
          consistent with driving under the influence of alcohol;

     2.   Carpenter had the odor of alcohol on his person; and

     3.   three beer cans were in the truck, one can open and
          empty, one open in the cup holder by the driver's seat
          and about three quarters full, and the third unopened
          on the bench seat of the truck. The second and third
          cans were cold to the touch.


     The probative value of this evidence outweighs any

incidental prejudice to the accused.   The conviction is affirmed.
                                                          Affirmed.




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