COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Overton 

Argued at Richmond, Virginia 

THOMAS PIERCE SMITH 

 MEMORANDUM OPINION* BY 

v. Record No. 1500-96-4 JUDGE LARRY G. ELDER 

 JUNE 17, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Frank A. Hoss, Jr., Judge 

 Mark Thomas Crossland for appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Thomas Pierce Smith (appellant) appeals his conviction of 

distribution of an imitation controlled substance in violation of 

Code § 18.2-248. He contends (1) that the trial court erred when 

it admitted evidence that he previously sold crack cocaine to an 

undercover investigator and (2) that the evidence was 

insufficient to support his conviction. For the reasons that 

follow, we affirm. 

 I. 

 FACTS 

 Appellant was charged with "knowingly and intentionally 

sell[ing], giv[ing] or distribut[ing] an imitation controlled 

substance" on July 20, 1995. At his trial, Ronquillo Dean 

 

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

designated for publication. 
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testified that he was involved in two transactions with appellant 

in July, 1995. Mr. Dean testified that he purchased crack 

cocaine from appellant on July 10. Appellant's counsel did not 

object to this testimony. Mr. Dean then testified that he 

attempted to purchase a substance from appellant on July 20 that 

appellant represented was crack cocaine but turned out to be 

macadamia nuts packaged to look like crack cocaine. 

 Mervat Milad, a forensic scientist with the Division of 

Forensic Science, testified about the identity of the substances 

Mr. Dean obtained from appellant on July 10 and July 20. 

Appellant's counsel objected to her testimony regarding the 

substance purchased on July 10 on the ground that this was 

inadmissible evidence of prior criminal conduct not relevant to 

the charge that appellant sold an imitation controlled substance 

on July 20. The trial court overruled appellant's objection and 

cautioned the jury that it could consider the evidence of the 

sale on July 10 "only for the purpose of showing intent and 

showing a potential relationship between [appellant and Mr. 

Dean.]" Ms. Milad subsequently testified that the substance 

purchased from appellant on July 10 was cocaine. She also 

testified that the substance obtained from appellant on July 20 

was not a controlled substance. 

 A jury convicted appellant of distribution of an imitation 

controlled substance. In the course of the proceedings, the 

trial court denied appellant's motions to strike the evidence, to 
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set aside the verdict, and to reconsider. 
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 II. 

 ADMISSIBILITY OF EVIDENCE REGARDING THE DRUG SALE ON JULY 10 

 Initially, we consider appellant's contention that his 

objections to all of the evidence offered by the Commonwealth 

regarding the drug sale on July 10 were properly preserved for 

appeal. In his brief, appellant challenges the admissibility of 

(1) Mr. Dean's testimony about his purchase from appellant on 

July 10, (2) Ms. Milad's testimony that the substance purchased 

was in fact crack cocaine, and (3) a certificate of drug analysis 

stating Ms. Milad's opinion. We hold that of these three sources 

of evidence, only appellant's objection to Ms. Milad's testimony 

is properly before us. 

 We are unable to consider the admissibility of Mr. Dean's 

testimony because appellant did not make a timely objection to 

it. In order for an objection to be preserved for appeal, "it 

must be timely made and the grounds stated with specificity." 

Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 

(1986); see Rule 5A:18. To be timely, the objection must be made 

at the time the evidence is offered, Ingram v. Commonwealth, 1 Va 

App. 335, 341, 338 S.E.2d 657, 660 (1986) (citation omitted), or, 

in the case when the objectionable nature of the evidence is not 

immediately obvious, at the time "the dangerous drift of the 

examination becomes apparent." Weimer v. Commonwealth, 5 Va. 

App. 47, 57, 360 S.E.2d 381, 386 (1987). Appellant did not 

object to Mr. Dean's testimony about the drug sale on July 10 at 
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the time it was offered, despite the obvious fact that this 

evidence concerned prior criminal conduct. Although appellant 

did object to Mr. Dean's testimony in his motion to set aside the 

verdict, this objection came too late to preserve it for appeal. 

See Carter v. Nelms, 204 Va. 338, 343, 131 S.E.2d 401, 404 

(1963) (holding that objection to evidence first raised in a 

motion to set aside the verdict "clearly . . . was too late"). 

 In addition, we cannot consider the admissibility of the 

certificate of analysis because it was never admitted into 

evidence. Although the certificate of analysis was marked as 

Commonwealth's exhibit one and authenticated by Ms. Milad, it was 

neither moved into evidence by the Commonwealth's attorney nor 

admitted into evidence by the trial court. 

 Next, we consider appellant's contention that the trial 

court erred when it admitted Ms. Milad's testimony that the 

substance purchased from him on July 10 was cocaine. He argues 

that her testimony was inadmissible because it was evidence of a 

prior crime that was neither connected with the offense charged 

nor relevant to any element or fact in issue at trial. Although 

we agree that Ms. Milad's testimony was erroneously admitted, we 

also conclude that this error was harmless. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion." Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). 
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 Generally, evidence of other crimes or bad acts committed by 

the accused is inadmissible to prove that the accused committed 

or likely committed the particular crime charged. See Rodriguez 

v. Commonwealth, 249 Va. 203, 206, 454 S.E.2d 725, 727 (1995) 

(citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 

802, 805 (1970)). However, exceptions to this general rule of 

exclusion are well established. See Morton v. Commonwealth, 227 

Va. 216, 222, 315 S.E.2d 224, 228, cert. denied, 469 U.S. 862, 

105 S. Ct. 198, 83 L.Ed.2d 130 (1984). 

 In order for evidence that the accused has 

committed other crimes to be admissible, it 

need only be relevant to prove a material 

fact or issue, and its relevance must 

outweigh the prejudice inherent in proving 

that an accused has committed other crimes. 

Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229, 

234, aff'd en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993) 

(citing Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 

616, cert. denied, 498 U.S. 908, 111 S. Ct. 281, 112 L.Ed.2d 235 

(1990)). Evidence of prior drug related conduct is relevant to 

prove an element of a drug related charge only if "there has been 

. . . [a] showing of an intimate relation or connection between 

the prior conduct and an element of the crime charged." Wilson, 

16 Va. App. at 222, 429 S.E.2d at 234. 

 We hold that the trial court abused its discretion when it 

admitted Ms. Milad's testimony that the substance purchased from 

appellant on July 10 was cocaine. The trial court admitted Ms. 
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Milad's testimony regarding the drug sale on July 10 for two 

purposes: (1) to prove appellant's intent and (2) to show a 

potential relationship between appellant and Mr. Dean. Admission 

of Ms. Milad's testimony for both of these purposes was 

erroneous. 

 First, the trial court erred when it concluded that the 

evidence regarding the drug sale on July 10 was relevant to 

appellant's intent in the charged offense. The two transactions 

occurred ten days apart and involved entirely different 

substances. The sale on July 10 was not sufficiently "related in 

time and nature to the charged offense so that the fact finder 

could reasonably infer that the latter act follows from or was 

related to the former." Jones v. Commonwealth, 18 Va. App. 329, 

332, 443 S.E.2d 820, 821-22 (1994). 

 In addition, the trial court erred when it admitted evidence 

of the prior drug sale for the purpose of proving "a potential 

relationship" between appellant and Mr. Dean. The evidence of 

the drug sale on July 10 was relevant to whether or not appellant 

and Mr. Dean previously engaged in a seller-buyer relationship. 

However, the trial court erred when it concluded that the 

existence of this prior relationship was a "material" issue. 

 Evidence is admissible if it is both relevant 

and material. "[E]vidence is relevant if it 

tends to establish the proposition for which 

it is offered." Evidence is material if it 

relates to a matter properly at issue. 

Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 
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441 (1987). In a prosecution for distributing an imitation 

controlled substance, the Commonwealth has the burden of proving 

(1) that a defendant intentionally distributed a substance and 

(2) that this substance was an imitation controlled substance. 

See Code § 18.2-248(A). Whether or not appellant and Mr. Dean 

had a prior relationship involving the sale of illegal drugs was 

purely collateral to the charge that appellant sold an imitation 

controlled substance on July 20, 1995. 

 Although the trial court erroneously admitted Ms. Milad's 

testimony, we also hold that this error was harmless. A 

nonconstitutional error is harmless if "it plainly appears from 

the record and the evidence given at trial that the error did not 

affect the verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 

1005, 407 S.E.2d 910, 911 (1991) (en banc). "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." Id.

 Based on our review of the record, we cannot say that the 

erroneous admission of Ms. Milad's testimony affected either the 

jury's finding of guilt or its determination of appellant's 

sentence. First, even without Ms. Milad's testimony, the 

evidence that appellant distributed an imitation controlled 

substance on July 20 was overwhelming. In addition, the 

exclusion of Ms. Milad's testimony would not have changed the 

jury's sentence because Ms. Milad's testimony merely corroborated 
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Mr. Dean's testimony, to which appellant did not object, that the 

substance appellant sold on July 10 was cocaine. 
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 III. 

SUFFICIENCY OF THE EVIDENCE 

 We disagree with appellant's argument that the evidence was 

insufficient to support his conviction. The evidence proved that 

appellant called Mr. Dean on July 20 and negotiated the sale of 

sixty-two grams of a substance that he represented was crack 

cocaine for $1,900. Prior to meeting with Mr. Dean at the 

appointed time and place to complete the sale, appellant had 

arranged for the placement of the imitation crack cocaine in a 

soft drink cup nearby. When Mr. Dean arrived, appellant directed 

him to take the cup's contents in exchange for the $1,900. After 

Mr. Dean recovered the cup, he discovered that it contained 

macadamia nuts packaged to look like crack cocaine. Both Mr. 

Dean and Officer Toney testified that drug dealers attempting to 

sell imitation crack cocaine frequently use macadamia nuts 

because of their similar appearance to the real drug. A 

laboratory analysis of the macadamia nuts established that they 

were not a controlled substance. Based on this evidence, we 

cannot say that the jury's conclusion that appellant distributed 

an imitation controlled substance on July 20 was either plainly 

wrong or without evidentiary support. Cf. Werres v. 

Commonwealth, 19 Va. App. 744, 748-49, 454 S.E.2d 36, 38-39 

(1995). 
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 For the foregoing reasons, we affirm the conviction of 

distribution of an imitation controlled substance in violation of 

Code § 18.2-248. 

Affirmed.