COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Annunziata 

Argued at Richmond, Virginia 

GERALD LEE PAYNE 

 MEMORANDUM OPINION* BY 

v. Record No. 2073-99-2 JUDGE SAM W. COLEMAN III 

 DECEMBER 19, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

 Arthur W. Sinclair, Judge Designate 

 Vanessa H. Watson, Assistant Public Defender, 

(Office of the Public Defender, on brief), 

for appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Gerald Lee Payne was convicted in a jury trial of 

distribution of cocaine. On appeal, Payne argues that the trial 

court erred by admitting into evidence statements he made to the 

arresting officer concerning his prior drug use. Payne contends 

that the statements were inadmissible evidence of prior bad acts 

because they were irrelevant to prove an element of the charged 

offense. He argues that the Commonwealth failed to show a causal 

relation or logical connection between his prior drug use and the 

charged offense sufficient to permit introduction of the evidence. 
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We agree. Accordingly, we reverse the conviction and remand the 

case to the trial court. 

BACKGROUND

 Charlottesville Police Officer Paul Best was on routine foot 

patrol at approximately 12:25 p.m. when he observed Payne engaged 

in what Best believed to be a hand-to-hand drug transaction. Best 

saw Payne and Wilbur Johnson standing in the road of a "known drug 

area" looking at Johnson's right hand, which was palm-side up. 

Best saw Payne place a small plastic bag containing an off-white 

substance into Johnson's hand. Best did not see any money 

exchange hands. Johnson and Payne briefly looked at the item 

before discovering that Best was watching them. Payne then pushed 

Johnson's hand into Johnson's stomach and walked away. 

 Best approached Johnson, told Johnson that he saw the 

cocaine, and requested that Johnson give it to him. After Johnson 

gave Best the plastic bag, Johnson was arrested, handcuffed, and 

placed in a police vehicle. As Best was talking to Johnson, Best 

observed Payne walking away but glancing back several times in 

their direction. Best apprehended Payne and arrested and 

handcuffed him. After the arrest, Payne told Best that "he 

[Payne] didn't understand how he could be arrested for 

[distributing] cocaine when Mr. Johnson didn't give him any money 

for it." Payne also told Best that "he [Payne] had used crack 

cocaine in the past, that he had used it the night before and that 
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he had used it about three times during the month of October." At 

trial, Officer Best was permitted to testify, over Payne's 

objection, what Payne had told him when arrested about having used 

cocaine in the past, having used it the night before and about 

three times during the month of October, and about no money having 

been exchanged for the cocaine. 

 Payne testified, on the other hand, to a different version of 

what had occurred. He stated that he had seen Johnson on his 

bicycle stopped in the street. When Payne approached, Johnson 

showed him the plastic bag, which Johnson said he had found in the 

street. Johnson handed Payne the bag and asked Payne if he 

thought the contents "was real." Payne replied he did not know 

and handed the bag back to Johnson. Payne denied having seen Best 

watching him. Payne also denied asking Best how he could be 

arrested for distributing cocaine when he did not receive any 

money from Johnson, and Payne denied telling Best that he used 

cocaine in the past. 

 The substance seized in the plastic bag was tested and 

determined to be cocaine. 

ANALYSIS

 "[I]n a criminal prosecution, proof which shows or tends to 

show that the accused is guilty of the commission of other 

crimes and offenses at other times, even though they are of the 

same nature as the one charged in the indictment, is incompetent 
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and inadmissible for the purpose of showing the commission of 

the particular crime charged." Kirkpatrick v. Commonwealth, 211 

Va. 269, 272, 176 S.E.2d 802, 805 (1970). However, "[e]vidence 

of 'other crimes' is relevant and admissible if it tends to 

prove any element of the offense charged. Thus, evidence of 

other crimes is allowed when it tends to prove motive, intent, 

or knowledge of the defendant." Guill v. Commonwealth, 255 Va. 

134, 138, 495 S.E.2d 489, 491 (1998) (citation omitted). "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 on reh'g en banc, 17 Va. App. 248, 436 S.E.2d 193 

(1993) (citation omitted). "'[T]he responsibility for balancing 

. . . probative value and prejudice rests in the sound 

discretion of the trial court,' and its decision 'will not be 

disturbed on appeal in the absence of a clear abuse.'" Wilkins 

v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 443 

(1994) (en banc) (quoting Ferrell v. Commonwealth, 11 Va. App. 

380, 390, 399 S.E.2d 614, 620 (1990)). 

 The Commonwealth argues that Payne's statement regarding his 

prior drug use was admissible because it was relevant to prove 

that Payne had knowledge of the nature and character of the 
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substance he distributed, which was an element of the offense the 

Commonwealth was required to prove. We disagree. 

 The Supreme Court has addressed the relevance and 

admissibility of prior drug-related conduct to prove an element of 

the charged offense. See Boyd v. Commonwealth, 213 Va. 52, 53, 

189 S.E.2d 359, 359-60 (1972) (per curiam); Eccles v. 

Commonwealth, 214 Va. 20, 22, 197 S.E.2d 332, 333 (1973) (per

curiam); Donahue v. Commonwealth, 225 Va. 145, 154-55, 300 S.E.2d 

768, 773-74 (1983). 

 In Boyd, the defendant was charged with possession and 

distribution of heroin after he sold two capsules of heroin to an 

undercover police officer. At trial, the officer was permitted to 

testify that a few days before the charged offense he observed 

Boyd making two similar drug sales. The trial court instructed 

the jury that the evidence of the prior offenses may not be 

considered as evidence of the defendant's guilt of the charged 

offense, but it may be considered as evidence "of whether the 

prior offenses constituted part of a general scheme, of which the 

crime charged is a part." The Supreme Court reversed the 

defendant's conviction, holding that the evidence of the prior 

sales was unrelated to the charged offense and the evidence of the 

prior sales did not fall within an exception to the general rule 

excluding prior crimes evidence. The Court concluded that because 

the evidence that Boyd had committed other crimes was not 
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relevant, the prejudicial effect of the evidence outweighed its 

probative value. 

 In Eccles, the defendant was charged with selling marijuana. 

The trial court admitted evidence of the defendant's having been 

seen smoking marijuana on prior occasions in order to prove that 

he was familiar with marijuana and knew "what the contents of 

these bags might be or what the expedition was about." The 

Supreme Court, relying on Boyd, held that evidence of the 

defendant's prior drug use was inadmissible to prove the defendant 

knew that the substance he possessed was marijuana. The fact that 

Eccles had previously used marijuana and had knowledge of the 

nature and character of marijuana was unrelated to the charged 

offense and did not tend to prove that Eccles knew that the 

substance in the bag was marijuana or that a sale of marijuana was 

being made. The Court reversed the defendant's conviction and 

remanded, stating "[s]ince we have no way of knowing the effect of 

the court's admission of testimony as to defendant's prior 

criminal acts of smoking marijuana had upon the minds of the jury, 

we cannot say that the error was not prejudicial." Eccles, 214 

Va. at 22-23, 197 S.E.2d at 333. 

 Similarly, in Donahue the defendant was charged with 

possession with intent to distribute PCP after police officers 

executed a search warrant at the residence she occupied with her 

"husband" and found PCP in the residence. At trial, the court 
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admitted evidence that on a prior occasion PCP had been seized 

from her when she was arrested along with others who were seen 

handling PCP in an automobile. The trial judge also admitted 

evidence that when she was arrested for the prior possession of 

PCP, she confessed to selling it. The court admitted evidence of 

the prior possession to prove that she was aware of the presence 

and nature of the PCP seized from her residence and knowingly 

possessed it with the intent to distribute. In reversing the 

conviction for erroneously admitting the other crimes evidence, 

the Supreme Court held that the evidence of prior possession of 

PCP was unrelated to the charged crime and did not tend to prove 

that Donahue possessed PCP with the intent to distribute. See

Donahue, 225 Va. at 156, 300 S.E.2d at 774. 

 This case is controlled by the Supreme Court's decisions in 

Boyd, Eccles, and Donahue. Evidence of the defendant's prior drug 

use was not probative of whether he distributed cocaine to Johnson 

on the occasion observed by Officer Best. The evidence in no way 

substantiates the events observed by Officer Best. It has no 

tendency to prove that Payne made the distribution. Proof that 

Payne admitted using cocaine on prior recent occasions proves only 

that he has a propensity to use cocaine and as such the evidence 

is highly prejudicial, particularly when compared to any minimal 

incidental value the evidence has in establishing that Payne may 

be familiar with the nature of a particular drug. The evidence 
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that Payne had a propensity to use and possess cocaine is highly 

prejudicial in that it strongly suggests to the jury that Payne 

probably committed the charged offense. 

 We reject the Commonwealth's argument that because the 

prosecution is required to prove that a defendant knows the nature 

and character of the substance he possessed, the Commonwealth is 

entitled to prove knowledge by showing prior use and familiarity 

with the same drug. If the Commonwealth were allowed to prove, as 

an exception to the general rule prohibiting other crimes 

evidence, that an accused knew the nature and character of the 

substance he is charged with possessing because he possessed the 

same substance on a prior occasion, the exception would swallow 

the rule in drug cases and evidence of possession of the same drug 

on other occasions would be admissible in every case. See Cooper 

v. Commonwealth, 31 Va. App. 643, 648-49, 525 S.E.2d 72, 74-75 

(2000) (en banc) (holding that evidence that defendant had sold 

imitation crack cocaine two months before the charged offense was 

"a separate act without logical or natural connection with 

[defendant's] present charge of possession of imitation cocaine 

with intent to distribute" and, thus, inadmissible). 

 Our Supreme Court expressly rejected a similar claim advanced 

by the Commonwealth in Donahue in which the Commonwealth relied 

upon the Fourth Circuit case of United States v. Samuel, 431 F.2d 

610 (4th Cir. 1970). The Donahue decision rejected the holding in 
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Samuel that evidence of an accused's prior offense to prove that 

he had knowledge of the character and presence of a specific drug 

was admissible in the prosecution's case-in-chief to prove "lack 

of innocent action" by the defendant. By rejecting Samuel, our 

Supreme Court has said that the Commonwealth may not prove in 

chief that an accused has knowledge of the nature and character of 

the drug possessed to refute a claim or defense of "innocent 

action," which is essentially the claim advanced by Payne. 

 For the foregoing reasons, we hold that the trial court erred 

by admitting the evidence that Payne used cocaine the night before 

and three times during the month of October. We cannot conclude, 

without usurping the role of the fact finder, that the trial 

court's error in admitting the evidence was harmless. See

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 

911 (1991) (en banc). 

 Accordingly, we reverse the conviction and remand the case to 

the trial court for such further proceedings as the Commonwealth 

may elect. 

Reversed and remanded.