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. 
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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.