1 

PRESENT: All the Justices 

JARVON LAVELL WALKER 

 OPINION BY 

v. Record No. 140747 JUSTICE WILLIAM C. MIMS 

 April 16, 2015 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we consider whether four separate charges 

of selling, giving, or distributing a controlled substance were 

permissibly joined for trial under Rules 3A:6(b) and 3A:10(c). 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

Derrick Walker was an informant working with the Southside 

Drug Task Force. He identified Jarvon Lavell Walker as a drug 

dealer.1 Jarvon was previously known to Derrick but they had 

not spoken for some time. 

On April 11, 2012 Derrick contacted Jarvon and arranged to 

buy a gram of crack cocaine. At Jarvon’s suggestion, Derrick 

met him at a store in South Hill and bought 0.961 gram of crack 

cocaine for $50. 

On April 13, 2012 Derrick again contacted Jarvon to buy 

crack cocaine. Jarvon again suggested they meet at the same 

store where he had sold Derrick crack cocaine two days earlier. 

He later changed the location to a trailer park in South Hill. 

 1

 Derrick and Jarvon are not related. 
2

Derrick met Jarvon there and bought 0.845 gram of crack cocaine 

for $50. 

On April 19, 2012 Derrick again contacted Jarvon to buy 

crack cocaine. Jarvon suggested they meet at a second trailer 

park in South Hill. Derrick met Jarvon there and bought 0.603 

gram of crack cocaine for $70. 

On April 24, 2012 Derrick again contacted Jarvon to buy 

crack cocaine. Jarvon suggested they meet at a trailer park in 

Mecklenburg County. Derrick met Jarvon there and bought 0.773 

gram of crack cocaine for $70. 

Each of the four transactions was overseen and recorded by 

task force personnel. Subsequent analysis by the Department of 

Forensic Sciences confirmed the quantity and nature of the 

substances Derrick had bought in each of the transactions. 

A grand jury later indicted Jarvon on four separate counts 

of selling, giving, or distributing a Schedule I or II 

controlled substance, in violation of Code § 18.2-248, 

following two or more prior convictions for substantially 

similar offenses. He thereafter moved to sever the indictments 

and be tried in four separate jury trials, arguing that the 

charged offenses were not part of a common scheme or plan. He 

also argued that he would be prejudiced if all four charges 

were tried in a single proceeding because a jury might convict 
3

him on all four even if only one was proved. After a hearing, 

the circuit court denied the motion. 

At the subsequent trial, the jury found Jarvon guilty on 

all four counts. The court sentenced him to six years’ 

imprisonment on each count and three years’ post-release 

supervision under Code § 19.2-295.2. 

In an appeal to the Court of Appeals, Jarvon again argued 

that the four offenses were not part of a common scheme or 

plan. The Court of Appeals determined that the offenses did 

constitute a common plan within the meaning of Rule 3A:6(b). 

The court noted that “the term ‘common plan’ described crimes 

that are related to one another for the purpose of 

accomplishing a particular goal.” Walker v. Commonwealth, 

Record No. 1051-13-2, slip op. at 6 (Mar. 25, 2014) (quoting 

Scott v. Commonwealth, 274 Va. 636, 646, 651 S.E.2d 630, 635 

(2007)). It observed that each sale followed a similar 

pattern: Jarvon waited for Derrick to contact him about buying 

crack cocaine; Jarvon set a location for the sale; each sale 

was for approximately one gram; and all sales took place in or 

near South Hill in Mecklenburg County. Id. 

The Court of Appeals also noted that although expert 

opinion testimony established the local market price for crack 

cocaine was $100 per gram, Jarvon only charged $50 for 0.961 
4

gram in the first sale.2 From this evidence, the Court of 

Appeals inferred that Jarvon had provided a discount price to 

“create a return customer,” id. at 6, which was “a ‘plan that 

tied the offenses together and demonstrated that the object of 

each offense was to contribute to the achievement of a goal 

that was not obtainable by the commission of any of the 

individual offenses.’” Id. at 8-9 (quoting Spence v. 

Commonwealth, 12 Va. App. 1040, 1044, 407 S.E.2d 916, 918 

(1991) (internal alteration omitted)). Accordingly, it 

concluded that joinder was permissible under Rule 3A:6(b). 

The Court of Appeals then determined that justice did not 

require severing the charges for the purposes of Rule 3A:10(c). 

It opined that the evidence of multiple sales was admissible 

because it helped establish both that Jarvon had the requisite 

intent to sell, give, or distribute the controlled substance 

and that he knew the nature and character of the substance he 

was selling. The court also opined that the probative value of 

admitting such evidence outweighed any prejudicial effect. 

Finally, it noted both that much of the evidence would have 

been the same if the circuit court had ordered separate trials 

and that the decision to join the charges served interests of 

 2

 Jarvon also sold 0.845 gram for $50 in the second sale, 

but trial testimony established that its quality was poor. 

Quality improved for the third and fourth sales and the price 

then was consistent with market price. Id. at 6-7. 
5

judicial economy. Id. at 9-11. Accordingly, it concluded that 

the circuit court did not abuse its discretion by permitting 

all four charges to be tried together. 

We awarded Walker this appeal. 

II. ANALYSIS 

In his first assignment of error, Walker asserts that the 

Court of Appeals erred by determining that the four offenses 

constituted a common plan for the purposes of Rule 3A:6(b). 

Citing Spence, he argues that separate sales of a controlled 

substance on different occasions are insufficient to constitute 

a common scheme or plan. 

The circuit court’s decision to join offenses for trial is 

reviewed for abuse of discretion. Scott, 274 Va. at 644, 651 

S.E.2d at 634. However, interpretations of the Rules of this 

Court by the Court of Appeals, including the meaning of the 

term “common plan” as used in Rule 3A:6(b), are questions of 

law we review de novo. LaCava v. Commonwealth, 283 Va. 465, 

471, 722 S.E.2d 838, 840 (2012).3

 3

 Rule 3A:6(b) permits joinder of offenses that are based 

on (1) “the same act or transaction,” (2) multiple acts or 

transactions “that are connected”, or (3) multiple acts that 

“constitute parts of a common scheme or plan.” In Scott, we 

determined that “common scheme” and “common plan” are separate 

and distinct, but not mutually exclusive. 274 Va. at 645-46, 

651 S.E.2d at 635. This appeal is limited solely to 

considering joinder of offenses based on common plan. 
6

In Spence, the defendant sold cocaine to an undercover 

narcotics investigator in four transactions between February 3 

and May 10, 1989, in or near Whitesville in Accomack County. 

12 Va. App. at 1041-42, 407 S.E.2d at 916-917. The Court of 

Appeals considered whether the four charges were properly 

joined for trial under Rule 3A:6(b). It considered each of the 

three prongs of Rule 3A:6(b). It concluded that the charges 

fulfilled none of them. Id. at 1042-45, 407 S.E.2d at 917-18. 

Specifically addressing the common scheme or plan prong, 

the Court of Appeals noted that “separate sales of a controlled 

substance by the same individual on different occasions do not 

constitute a common scheme or plan.” Id. at 1044, 40 S.E.2d at 

918. Rather, 

a common scheme or plan is present only if 

the “relationship among offenses is 

dependent upon the existence of a plan that 

ties the offenses together and demonstrates 

that the objective of each offense was to 

contribute to the achievement of a goal not 

obtainable by the commission of any of the 

individual offenses.” 

Id. (quoting Godwin v. Commonwealth, 6 Va. App. 118, 122, 367 

S.E.2d 520, 522 (1988) (internal alteration omitted)). 

 The Court of Appeals concluded that 

[n]othing inherent in any of the four 

crimes herein charged would separate them 

from numerous offenses of possession and 

distribution of drugs that happen every 

day. There is no evidence of a plan tying 
7

these four drug sales together or showing 

that each offense was intended to assist in 

accomplishing a goal other than that 

achieved by each individual offense. The 

four offenses merely show that Spence has 

the propensity to commit the crime and this 

inference has been held to be error because 

it reverses the presumption of innocence. 

Lewis v. Commonwealth, 225 Va. 497, 502, 

303 S.E.2d 890, 893 (1983). 

Id. at 1044-45, 407 S.E.2d at 918. 

The only material distinction between Spence and this case 

is that the four transactions took place over a span of 13 

weeks in Spence and over a span of 13 days here. While we 

indicated in Satcher v. Commonwealth, 244 Va. 220, 299, 421 

S.E.2d 821, 827 (1992), that offenses may be considered parts 

of a common scheme or plan when they are “closely connected in 

time, place, and means of commission,” the two crimes charged 

in that case occurred “within a few yards and about one-half 

hour of each other,” and shared the same modus operandi. 

We are not persuaded that the general vicinity of South 

Hill and a span of 13 days sufficiently connects the four 

transactions here any more than the general vicinity of 

Whitesville and a span of 13 weeks did in Spence. Similarly, 

we are not persuaded that the pattern of the transactions 

identified by the Court of Appeals in this case was 

sufficiently specific to establish an unusual and unifying 

modus operandi. Cf. Yellardy v. Commonwealth, 38 Va. App. 19, 
8

22-25, 561 S.E.2d 739, 741-42 (2002) (affirming the conviction 

in a single trial of a defendant charged with two robberies 

occurring four days apart in the same park where each victim 

was an unaccompanied male threatened with a rock and 

subsequently accused by the defendant of having made a sexual 

proposition). 

We likewise are not persuaded that the evidence 

established that Jarvon had a particular “goal not obtainable 

by the commission of any of the individual offenses.” Spence, 

12 Va. App. at 1044, 407 S.E.2d at 918 (internal quotation 

marks omitted). The object of selling drugs for money is to 

make money selling drugs. The seller’s goal is to make a 

profit. Return customers are more profitable: the seller 

incurs lower operating costs selling to them than if he or she 

must spend the time and effort to attract new ones. Therefore, 

the cultivation of return customers is intrinsic to the goal of 

profiting from the sale of drugs. 

The Court of Appeals also sought to distinguish Spence on 

the ground that it was decided before our 2007 decision in 

Scott. In that case we defined the term “common scheme or 

plan” as used in Rule 3A:6(b) for the first time. 274 Va. at 

644, 651 S.E.2d at 635. The Court of Appeals determined that 

earlier cases, including Spence, were decided using an analysis 

blending common scheme and common plan that Scott made obsolete 
9

and they therefore were no longer useful in ascertaining 

whether offenses formed “a common plan exclusive of a common 

scheme.” Walker, slip op. at 8. We disagree. 

In Scott, we held that “the term ‘common plan’ describes 

crimes that are related to one another for the purpose of 

accomplishing a particular goal.” 274 Va. at 646, 651 S.E.2d 

at 635. This definition echoes rather than contradicts the 

language in Spence that offenses constituting part of a common 

plan must “contribute to the achievement of a goal not 

obtainable by the commission of any of the individual 

offenses.” 12 Va. App. at 1044, 407 S.E.2d at 918 (internal 

quotation marks omitted). Accordingly, Scott does not overrule 

or limit Spence. The similarity of these statements encourages 

rather than discourages reaching similar results on the similar 

facts present in both cases. 

Nevertheless, we appreciate that the term “common plan” is 

amorphous and may merit additional clarification. But see

United States v. Jawara, 474 F.3d 565, 574 (9th Cir. 2007) 

(opining that “common scheme” and “common plan” are “self 

defining”). We perceive the similarities between Rule 3A:6(b) 

and Federal Rule of Criminal Procedure 8(a), which permits 

joinder of multiple offenses when they “are of the same or 

similar character, or are based on the same act or transaction, 

or are connected with or constitute parts of a common scheme or 
10

plan.” Federal “courts generally permit joinder [under the 

federal rule’s common scheme or plan test] where the counts 

grow out of related transactions. Stated another way, [federal 

courts] ask whether commission of one of the offenses either 

depended upon or necessarily led to the commission of the other 

. . . .” Jawara, 474 F.3d at 574 (internal quotation marks, 

citations, and alterations omitted); see also United States v. 

Dominguez, 226 F.3d 1235, 1238-39 (11th Cir. 2000) (approving 

joinder of offenses when proof of one provides the motive and 

necessity for the other). 

Although the joinder analysis is different from the 

analysis of whether evidence of other crimes, wrongs, or acts 

is admissible under Rule 2:404(b), the principles supporting 

the evidentiary analysis helpfully illustrate our joinder 

analysis in this case. In the Rule 2:404(b) context, a common 

plan includes “‘such a concurrence of common features that the 

various acts are naturally to be explained as caused by a 

general plan of which they are the individual manifestations.’” 

McWhorter v. Commonwealth, 191 Va. 857, 870-71, 63 S.E.2d 20, 

26 (1951) (quoting 2 Wigmore on Evidence § 304, at 202 (3d ed. 

1940)). 

Thus, a “common plan” “connotes a series of acts done with 

a relatively specific goal or outcome in mind.” David P. 

Leonard, The New Wigmore: A Treatise on Evidence § 9.2.2, at 
11

572 (2009).4 This goal or outcome exists when the constituent 

offenses occur sequentially or interdependently to advance some 

common, extrinsic objective. For example, a defendant may 

break into a bank president’s home, steal the keys to the bank, 

and then burgle it. All of the associated offenses are 

committed sequentially to further the principal objective of 

taking the money from the bank. Id. § 9.2.1(a), at 562. 

Similarly, a defendant may be a partner in a business and 

murder the other partners to acquire control of it. Each 

murder is a separate prerequisite to acquiring control of the 

business, so each offense is an act in furtherance of that 

objective. Id. § 9.2.1(b), at 567-68. 

By contrast, this case has none of the features of a 

common plan because there is no evidence from which to infer “a 

relatively specific goal or outcome.” Id. § 9.2.2, at 572. 

The four individual drug transactions are not “related to one 

another for the purpose of accomplishing a particular goal.” 

Scott, 274 Va. at 646, 651 S.E.2d at 635. The key factor, as 

 4

 Similarly, a “common scheme” “connotes a particular act 

done multiple times in a similar way.” Leonard, supra, § 

9.2.2, at 572. If the similarity between the offenses is 

sufficiently distinctive, this is consistent with our 

definition in Scott that “[t]he term ‘common scheme’ describes 

crimes that share features idiosyncratic in character, which 

permit an inference that each individual offense was committed 

by the same person or persons as part of a pattern of criminal 

activity involving certain identified crimes.” 274 Va. at 645, 

651 S.E.2d at 635. 
12

noted in Spence and the examples above, is that the goal 

furthered by the offenses must be extrinsic to at least one of 

them. Profiting from the sale of drugs, including cultivating 

return customers, is intrinsic to the offense of selling drugs.5

Accordingly, we conclude that the Court of Appeals erred 

by ruling that the four offenses in this case were part of a 

common plan. That is the sole basis upon which the court 

determined that they fulfilled the requirements of Rule 3A:6(b) 

for joinder under Rule 3A:10(c). Because the record contains 

no evidence from which to infer a common plan, the requirements 

of Rule 3A:6(b) are not met. We need not reach Jarvon’s second 

assignment of error, in which he asserts that the court erred 

by ruling that justice did not require separate trials. 

III. CONCLUSION 

For the foregoing reasons, we will reverse the judgment of 

the Court of Appeals and remand the case for further 

proceedings consistent with this opinion. 

Reversed and remanded. 

 5

 There was, for example, nothing from which to infer that 

Jarvon had a separate, extrinsic goal of concealing the 

proceeds of his sales through money laundering, in violation of 

Code § 18.2-246.3, or using them to further racketeering 

activity proscribed by Chapter 13 of Title 18.2. 
13 

JUSTICE KELSEY, with whom JUSTICE McCLANAHAN joins, dissenting. 

 My colleagues have concluded that Walker’s four drug 

charges should have been tried separately. The governing 

standard of appellate review, however, requires that we reverse 

only if the trial judge abused his discretion in coming to a 

different conclusion. I am unwilling to say that he did. 

 I. 

 Under Rule 3A:10(c), a trial court may join separate 

criminal charges in a consolidated trial “if justice does not 

require separate trials” and “the offenses meet the 

requirements of Rule 3A:6(b).” Rule 3A:6(b) authorizes a 

single indictment or information to charge separate offenses 

“if the offenses are based on the same act or transaction, or 

on two or more acts or transactions that are connected or 

constitute parts of a common scheme or plan.” See generally

Scott v. Commonwealth, 274 Va. 636, 644-46, 651 S.E.2d 630, 

634-35 (2007). 

 The legal principle is simple and highly flexible. 

Joinder is permissible if it is just and if the charges could 

have been joined in the initial charging instrument. Rule 

3A:10(c) and Rule 3A:6(b) use discretionary concepts incapable 

of being reduced to precise metrics. I point this out not to 

criticize the Rules, but to praise them. No two drug-related 

cases are exactly alike, as every trial judge knows, 
14

particularly those who have heard scores of such cases. 

Factual dissimilarities often exist, and thus, the legal 

standard for joinder must be supple enough to handle the broad 

spectrum of drug-related cases — not just the handful of cases 

that make their way into the appellate reports. 

 For this reason, we have repeatedly emphasized that 

whether criminal charges “should be tried separately or 

together is a matter resting within the sound discretion of the 

trial court.” Fincher v. Commonwealth, 212 Va. 552, 553, 

186 S.E.2d 75, 76 (1972) (per curiam) (citing Bryant v. 

Commonwealth, 189 Va. 310, 315, 53 S.E.2d 54, 56 (1949)).1 

“Hence, we adopt the rule of discretion for determining 

questions of consolidation.” Id. Absent a showing that the 

trial court committed an abuse of discretion, we have no 

authority to reverse a joinder decision in a criminal case. 

 The exercise of discretion presupposes “that, for some 

decisions, conscientious jurists could reach different 

conclusions based on exactly the same facts — yet still remain 

entirely reasonable.” Thomas v. Commonwealth, 62 Va. App. 104, 

111, 742 S.E.2d 403, 407 (2013) (citation and internal 

quotation marks omitted). In this context, the trial court 

 

1

 See also Scott, 274 Va. at 644, 651 S.E.2d at 634; 

Commonwealth v. Minor, 267 Va. 166, 172, 591 S.E.2d 61, 65 

(2004); Commonwealth v. Smith, 263 Va. 13, 16, 557 S.E.2d 223, 

225 (2002); Cheng v. Commonwealth, 240 Va. 26, 33-34, 393 

S.E.2d 599, 603 (1990). 
15

“has a range of choice, and its decision will not be disturbed 

as long as it stays within that range and is not influenced by 

any mistake of law.” Lawlor v. Commonwealth, 285 Va. 187, 212-

13, 738 S.E.2d 847, 861 (2013) (alteration and internal 

quotation marks omitted). “This bell-shaped curve of 

reasonability governing our appellate review rests on the 

venerable belief that the judge closest to the contest is the 

judge best able to discern where the equities lie.” Thomas, 62 

Va. App. at 111-12, 742 S.E.2d at 407 (quoting Hamad v. Hamad, 

61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013)) (internal 

quotation marks omitted). 

 It necessarily follows that an abuse of discretion cannot 

be shown merely because “[r]easonable trial judges and even 

some members of this Court, had they been sitting as trial 

judges in this case,” might have reached a different conclusion 

than the one under review. Coe v. Commonwealth, 231 Va. 83, 

88, 340 S.E.2d 820, 823 (1986).2 “‘Only when reasonable jurists 

could not differ can we say an abuse of discretion has 

occurred.’” Grattan v. Commonwealth, 278 Va. 602, 620, 685 

S.E.2d 634, 644 (2009) (quoting in parenthetical Thomas v. 

Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 

 

2

 See also AME Fin. Corp. v. Kiritsis, 281 Va. 384, 393, 

707 S.E.2d 820, 824 (2011) (“In evaluating whether a trial 

court abused its discretion, ‘we do not substitute our judgment 

for that of the trial court.’” (quoting Beck v. Commonwealth, 

253 Va. 373, 385, 484 S.E.2d 898, 906 (1997))). 
16

(2005)). If “reasonable trial judges could properly disagree,” 

it matters not that “some members of this Court” would have 

made a different discretionary decision. Noll v. Rahal, 219 

Va. 795, 801, 250 S.E.2d 741, 745 (1979). 

 II. 

 I concede that a common plan for purposes of Rule 3A:6(b) 

cannot be applied at the highest levels of abstraction. Every 

drug dealer probably plans on selling as many drugs to as many 

addicts as he can. Expanding the common plan definition to 

this level of generality would render the joinder test 

unreasonably broad. But I think it no less unreasonable to 

tighten the joinder standard to the point where no drug dealer 

can have a common plan to sell drugs. Burglars, sex offenders, 

thieves, counterfeiters, and all manner of other criminals fall 

within the parameters of Rule 3A:6(b). I see no reason why 

drug dealers should receive a special exemption from its reach. 

Navigating between the overly broad and overly narrow 

interpretations of common plan requires trial courts to focus 

on the distinct, limiting features of each case. A trial court 

should consider, for example, whether there was a single buyer 

or multiple buyers, whether the time frame of the transactions 

was short or long, whether the sales territory was the same or 

different for all transactions, whether one or more types of 
17

drugs were sold, and whether there was a continuing or episodic 

relationship between the buyer and seller. 

Even with these guidelines, it may well be true that the 

common-plan standard of Rule 3A:6(b) requires a considerable 

amount of judicial line-drawing to keep it from being applied 

too broadly or too narrowly. As Justice Holmes once said, 

however, we need not be “troubled by the question where to draw 

the line. That is the question in pretty much everything worth 

arguing in the law.” Irwin v. Gavit, 268 U.S. 161, 168 (1925). 

Nor should we abandon the exercise simply because it “depends 

upon differences of degree. The whole law does so as soon as 

it is civilized.” Daniels v. Williams, 474 U.S. 327, 334-35 

(1986) (quoting LeRoy Fibre Co. v. Chicago, Milwaukee & St. 

Paul Ry., 232 U.S. 340, 354 (1914) (Holmes, J., concurring in 

part)). 

 III. 

In this case, the evidence at trial3 showed that Walker, on 

four separate occasions over the course of thirteen days, sold 

 

3

 See United States v. Cardwell, 433 F.3d 378, 385 & n.1 

(4th Cir. 2005) (recognizing that an appellate court reviewing 

a trial court’s joinder decision must look both “to the 

allegations in the indictment and the evidence produced at 

trial” and noting that this “rule has the benefit of a built-in 

type of harmlessness review; if the indictment does not allege 

a sufficient relationship for [federal joinder] purposes, but 

the evidence at trial reveals that such a relationship exists, 

it is difficult to see how the defendant could ever be 

prejudiced by the technical misjoinder”). 
18

cocaine to the same police informant in and around the South 

Hill area of Mecklenburg County. These four transactions were 

not isolated, random, or unplanned encounters between a drug 

dealer and an addict. They were instead — a reasonable jurist 

could conclude — evidence of a common plan by Walker to groom a 

specific buyer to participate in an ongoing buyer-seller 

relationship, in a short amount of time, in the same sales 

territory, with the same drug. 

 In making his decision, the experienced trial judge in 

this case no doubt considered the pretrial proffer of Walker’s 

counsel, stating: 

Your Honor, as part of his defense, [Walker] 

anticipate[s] that he may want to present a 

defense that perhaps the substance that was 

transferred was not, in fact, cocaine, or that 

there was no drug transaction at all. 

J.A. at 28. That proffer proved to be prophetic in light of 

the closing argument to the jury by Walker’s counsel: 

We don’t know for certain that what he was 

setting up was any kind of transaction for 

cocaine. Remember, it must be cocaine. It 

can’t be marijuana, it can’t be ChapStick, it 

can’t be bubblegum or anything else. What’s in 

his hand, what goes back and forth, if there is 

anything going back and forth, must be cocaine. 

Id. at 412. 

 Walker’s defense strategy underscores the reasonableness 

of the trial court’s decision to try the charges together. 

Walker wanted the jury to believe that the Commonwealth could 
19

not prove that what he handed to the informant was “in fact, 

cocaine,” id. at 28, and that it could have been, for all we 

know, “ChapStick” or “bubblegum or anything else,” id. at 412. 

It is true he hoped to convince the jury that the informant was 

lying and that no drug transaction occurred at all. But Walker 

also sought to imply that, if the jury believed something was 

sold, he had no knowledge it was cocaine and no intent to 

distribute it. 

This subtle argument implicated the Commonwealth’s burden 

of proving that Walker “was aware of the presence and character 

of the drugs,” Andrews v. Commonwealth, 216 Va. 179, 182, 

217 S.E.2d 812, 814 (1975), and that he possessed them with the 

“intent” to distribute, Code § 18.2-248(A). His ChapStick and 

bubblegum strategy might have had better success if the four 

charges were tried to four separate juries, with each jury 

aware of only one offense. As Walker correctly points out, the 

law of evidence does not permit the admission of evidence of 

other crimes merely to show propensity — that is, once a drug 

dealer, always a drug dealer. 

But Walker’s anti-propensity generalization breaks down 

when knowledge and intent are at issue, as they certainly were 

in this case. Evidence of other crimes is permissible if it 

helps prove “knowledge” and “intent.” See Va. R. Evid. 

2:404(b). See generally Kirkpatrick v. Commonwealth, 211 Va. 
20

269, 272, 176 S.E.2d 802, 805 (1970). In this respect, 

Virginia law follows an “inclusionary approach to the uncharged 

misconduct doctrine” by admitting evidence of other crimes “if 

relevant, for any purpose other than to show a mere propensity 

or disposition on the part of the defendant to commit the 

crime.” Kent Sinclair et al., Virginia Evidentiary 

Foundations § 6.4[A], at 165 (1998).4

For this reason, drug deals shortly before and shortly 

after the one in question may be admissible to prove that the 

defendant knew the white substance in his hand was an illegal 

drug (not ChapStick or bubblegum) and that he intended to sell 

it.5 As many courts have held, knowledge and intent must be 

proved in every drug-related case, and evidence of other 

closely related crimes can be used to prove it.6

 

4

 It is thus fair to say that, “[u]ltimately, the question 

whether to admit evidence of other crimes involves the same 

considerations as any other circumstantial evidence.” Spencer 

v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616 (1990). 

5

 When a non-propensity basis exists for admitting 

evidence, it does not matter if the evidence involves events 

preceding or subsequent to the date of the alleged crime. See 

generally Scott v. Commonwealth, 228 Va. 519, 526-27, 323 

S.E.2d 572, 577 (1984) (accepting that, when logically and 

legally relevant, factual circumstances “which followed the 

commission of the crime on trial, as well as those which 

preceded it” should be admissible “even though they may show 

the defendant guilty of other offenses”). 

6

 See, e.g., Barlow v. Commonwealth, 26 Va. App. 421, 428, 

494 S.E.2d 901, 904 (1998); Wilkins v. Commonwealth, 18 Va. 

App. 293, 299, 443 S.E.2d 440, 444 (1994); Rodriguez v. 

Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d 419, 422 
21

I acknowledge, but am unmoved by, Walker’s concern that 

the four offenses, when known by the same jury, might prejudice 

his defense. In a sense, “[a]ll evidence tending to prove 

guilt is prejudicial,” Powell v. Commonwealth, 267 Va. 107, 

141, 590 S.E.2d 537, 558 (2004), at least from the point of 

view of the person standing trial. “Virginia law, however, 

intervenes only when the alleged prejudice tends to inflame 

irrational emotions or leads to illegitimate inferences. And 

even then, it becomes a matter of degree.” Thomas, 44 Va. App. 

at 758, 607 S.E.2d at 746. 

Like the trial court and the unanimous panel of the Court 

of Appeals, I find it neither unreasonable nor unjust to 

consider all four drug transactions — involving the same buyer, 

during a thirteen-day period, concerning the same drug, taking 

place in the same sales territory, arising out of an ongoing 

relationship — to determine whether Walker knew what he was 

 

(1994); Satterfield v. Commonwealth, 14 Va. App. 630, 637, 420 

S.E.2d 228, 232 (1992) (en banc); Rider v. Commonwealth, 8 Va. 

App. 595, 599, 383 S.E.2d 25, 27 (1989); Barber v. 

Commonwealth, 5 Va. App. 172, 180-81, 360 S.E.2d 888, 892 

(1987); accord United States v. Toro, 359 F.3d 879, 884 (7th 

Cir. 2004); United States v. Booker, 334 F.3d 406, 411-12 (5th 

Cir. 2003); United States v. Maden, 114 F.3d 155, 157 (10th 

Cir. 1997); United States v. Jackson, 84 F.3d 1154, 1159 (9th 

Cir. 1996); United States v. Ramirez, 894 F.2d 565, 569 (2d 

Cir. 1990); United States v. Samuel, 431 F.2d 610, 612 (4th 

Cir. 1970); Bell v. United States, 677 A.2d 1044, 1047 (D.C. 

1996); State v. Graham, 768 P.2d 259, 262 (Kan. 1989); State v. 

Montford, 529 S.E.2d 247, 252 (N.C. Ct. App. 2000); State v. 

King, 561 S.E.2d 640, 645-46 (S.C. Ct. App. 2002); Howard v. 

State, 713 S.W.2d 414, 416 (Tex. App. 1986). 
22

selling and intended to sell it. To be sure, I see little 

justice in allowing Walker to have the “evidence sanitized,” 

Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 577 

(1984) (internal quotation marks omitted), in an effort to 

improve his chances of convincing one or more of four different 

juries of his ChapStick and bubblegum defense. 

 I respectfully dissent.