COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

LINDA DIANE McWILLIAMS 

 MEMORANDUM OPINION* BY 

v. Record No. 1272-96-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 3, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Patricia P. Nagel, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Linda Diane McWilliams was convicted of possession of 

cocaine in violation of Code § 18.2-250. On appeal, McWilliams 

argues that the trial judge erred in admitting evidence that 

should have been excluded on hearsay and relevancy grounds. For 

the reasons that follow, we affirm the conviction. 

I. 

 McWilliams was indicted and tried only on the offense of 

possession of cocaine. While giving her opening statement, the 

Commonwealth's attorney stated that Officer David Akers received 

a telephone call informing him that McWilliams was getting into 

the cab of a truck with a truck driver and that McWilliams "was a 

wanted prostitute." Counsel for McWilliams objected on hearsay 

grounds, and the judge stated that "[i]t's really not hearsay. I 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

guess it's for the reason he went there." 

 The Commonwealth's only witness, Officer Akers, testified 

that on July 19, 1995, he received a tip from a reliable 

informant. The Commonwealth's attorney asked Akers what the 

informant told him about McWilliams. Akers said, "[h]e told me 

that there was a prostitute." Counsel for McWilliams objected 

"to what [the informant] told [Akers]," and the judge told the 

jury to "[d]isregard that last statement." Counsel for 

McWilliams then stipulated that Akers had probable cause to 

approach McWilliams. 

 Akers testified that as he was approaching the truck, he saw 

the cab of the truck "moving . . . in a back and forth motion 

like a rocking motion." When Akers tried to enter the cab, the 

door was locked. Akers knocked on the door and did not receive a 

response until five minutes later. Akers testified that he 

looked into a window of the cab and could see moving back and 

forth the curtain that shielded the back compartment. Counsel 

for McWilliams objected and stated, "I don't believe there is any 

prostitution warrant that is before this Court or before this 

jury. I don't think it's relevant at all." The judge noted that 

Akers had not mentioned prostitution. When the Commonwealth's 

attorney argued that Akers had a "right to explain the 

circumstances," the judge allowed the Commonwealth to proceed. 

 Akers testified that the truck driver came to the window and 

opened the door. Akers could see through an opening in the 
- 3 - 

curtain McWilliams pulling her dress down. Counsel for 

McWilliams objected on relevancy grounds and stipulated that 

Akers had probable cause to arrest McWilliams. The judge stated, 

"We have had enough of this. All right, what happened?" Akers 

then testified that he ran McWilliams' name through the computer. 

 The judge interrupted Akers, told Akers not to "go into that," 

and instructed the jury to disregard "anything other than the 

warrant." The judge told the jury that "[t]he arrest was lawful. 

 He arrested her. Let's move along." 

 Akers testified that he arrested McWilliams. At the police 

station, Akers searched McWilliams' purse and found a three inch 

tubular piece of an antenna. The tube contained a residue that 

the state laboratory determined to be crack cocaine. 

 The Commonwealth then rested, and McWilliams offered no 

evidence. In the course of instructing the jury, the trial judge 

instructed the jury as follows: 

 Remember I instructed you there might have 

been some evidence of some other activity in 

this case but that is not to be considered by 

you in finding the defendant guilty. At this 

stage of the trial you will not use that at 

all. Do you understand that? 

The jury found McWilliams guilty of possession of cocaine. After 

hearing the arguments of counsel regarding the appropriate 

punishment, the jury imposed a sentence of two and one-half 

years. McWilliams moved to set aside the verdict on the grounds 

that it was contrary to the law and the evidence. Stating that 

was "purely a jury question," the judge overruled the motion. 
- 4 - 

 II. 

 McWilliams first argues that the trial judge erred in 

allowing the Commonwealth's attorney to refer, in her opening 

statement, to the informant's statement that McWilliams was a 

prostitute. McWilliams asserts that the trial judge abused his 

discretion in allowing this argument because the informant's 

statement was hearsay. We are barred from considering this 

issue, however, because McWilliams failed to make a motion for a 

mistrial or to seek a cautionary instruction. See Martinez v. 

Commonwealth, 241 Va. 557, 559 n.2, 403 S.E.2d 358, 359 n.2 

(1991) ("[The Supreme] Court has repeatedly held that errors 

assigned because of a prosecutor's improper comments or conduct 

during argument will not be considered on appeal unless the 

accused timely moves for a cautionary instruction or for a 

mistrial."). 

 III. 

 McWilliams next argues that the trial judge erroneously 

admitted Akers' testimony that the informant told him McWilliams 

was a prostitute. McWilliams contends that the informant's 

statement was hearsay. We disagree. 

 Preliminarily, we note the well established rule that "[t]he 

admissibility of evidence is within the broad discretion of the 

trial [judge], and the trial [judge's] ruling will not be 

disturbed on appeal absent an abuse of discretion." Johnson v. 

Commonwealth, 21 Va. App. 102, 105, 462 S.E.2d 125, 126 (1995). 
- 5 - 

The Supreme Court has repeatedly stated that, 

 "[t]he hearsay rule does not operate to 

exclude evidence of a statement . . . offered 

for the mere purpose of explaining or 

throwing light on the conduct of the person 

to whom it was made. The evidence was 

admitted not for the purpose of showing the 

guilt or innocence of the defendant; but for 

the purpose of showing the reason for the 

police officers' action in arresting him." 

Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506, 508 

(1979) (citation omitted). 

 As in Upchurch, the trial judge ruled that the statement 

that McWilliams was a prostitute was not offered to show that 

McWilliams was a prostitute. The statement was offered to 

explain why Akers approached and arrested McWilliams. Because 

the statement was not offered for its truth, it is not hearsay 

and was not excludable on that ground. See id. Accordingly, we 

hold that the trial judge did not abuse his discretion in 

overruling McWilliams' hearsay objection. 

IV. 

 McWilliams next argues that the trial judge erred in 

admitting irrelevant testimony regarding the circumstances 

Officer Akers observed before he arrested McWilliams and the fact 

that McWilliams was a prostitute. 

 The record proves that before the testimony at issue was 

offered, McWilliams stipulated that the officer had probable 

cause to approach her. The record also reveals that counsel 

objected twice during Akers' testimony regarding the 
- 6 - 

circumstances at the truck. First, counsel objected and stated 

that because McWilliams was not charged with prostitution, the 

evidence was irrelevant. The judge noted that Akers had not 

mentioned prostitution in that particular testimony and allowed 

the Commonwealth to proceed. After Akers' further testimony that 

McWilliams was pulling at her dress, counsel again objected on 

relevancy grounds and stipulated that the arrest was based on 

probable cause. The judge ordered the Commonwealth to move on 

and instructed the jury to disregard everything except that the 

officer validly arrested McWilliams. At the end of all the 

evidence, the judge instructed the jury that "there might have 

been some evidence of some other activity in this case but that 

is not to be considered by you . . . ." 

 "Evidence which bears upon and is pertinent to matters in 

issue, and which tends to prove the offense, is relevant and 

should be admitted." Coe v. Commonwealth, 231 Va. 83, 87, 340 

S.E.2d 820, 823 (1986). However, the following rule is equally 

well established: 

 Evidence which has no tendency to prove 

guilt, but only serves to prejudice an 

accused, should be excluded on the ground of 

lack of relevancy. For evidence to be 

admissible it must relate and be confined to 

the matters in issue and tend to prove an 

offense or be pertinent thereto. Evidence of 

collateral facts or those incapable of 

affording any reasonable presumption or 

inference on matters in issue, because too 

remote or irrelevant, cannot be accepted in 

evidence. 

Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 
- 7 - 

(1967). Evidence is prejudicial if "the implications it raised 

tended to divert the minds of the jurors from the issues before 

them and, thus, 'prevented the accused from having that character 

of an impartial trial to which one is entitled.'" Lewis v. 

Commonwealth, 225 Va. 497, 501-02, 303 S.E.2d 890, 892 (1983) 

(citation omitted). 

 Evidence that McWilliams was engaging in sexual activity in 

the truck or that McWilliams was a prostitute was not relevant to 

the charge of possession of cocaine. During the trial before the 

jury, McWilliams did not raise the issue of the validity of the 

arrest. Indeed, she stipulated that the arrest was valid. 

Moreover, the evidence was prejudicial because it had a tendency 

to divert the jury's attention and cause the jury to base its 

verdict upon improper grounds. Thus, the trial judge erred in 

failing to sustain McWilliams' first objection and allowing the 

Commonwealth to proceed with the line of questioning that 

elicited further testimony regarding the pre-arrest 

circumstances. 

 However, after McWilliams' second objection the judge 

instructed the jury to "[d]isregard . . . anything other than the 

[arrest] warrant." In addition, at the end of the jury 

instructions, the judge instructed the jury not to consider 

"evidence of some other activity" in rendering its verdict. "A 

judgment will not be reversed for the improper admission of 

evidence that a [judge] subsequently directs a jury to disregard 
- 8 - 

because juries are presumed to follow prompt, explicit, and 

curative instructions." Beavers v. Commonwealth, 245 Va. 268, 

280, 427 S.E.2d 411, 420 (1993). The trial judge twice 

instructed the jury to disregard the erroneously admitted 

evidence in this case. We cannot conclude on this record that 

the jury did not follow the trial judge's instructions. 

Accordingly, we find no reversible error. 

Affirmed.