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. Sincla ir, Judge Designate Vanessa H. Watson, As sistant Public Defender, (Office of the Public Defender, on brief), for appellant. Amy L. Marshall, Assi stant 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 conv icted in a ju ry trial of distribution of cocaine. On appeal, Payn e argues that the trial court erred by admittin g into evidence statem ents he made to the arresting offi cer concerning his prior dr ug use. Pa yne contends that the statements we re inadmissible eviden ce of prio r bad acts because they were irrelevant to prove an element of the charged offense. He argues th at the Commonweal th failed to show a causal relation or logi cal connection between hi s prior drug use and the charged offense sufficient to permit introduction of the evidence.- 2 - We agree. Acco rdingly, we reve rse the convictionand remand the case to the trial court. BACKGROUND Charlottesville Police Officer Paul Best was on routine foot patrol at approx imately 12:25 p.m. when he observ ed Payne engaged in what Best believed to be a hand-to- hand drug transa ction. Best saw Payne and Wi lbur Johnson standi ng 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 ba g containing an off-white substance into Johnson's hand. Best did not see any money exchange hands. John son and Payne br iefly looked at the item before discovering that Best was watching them . Payne then pushed Johnson's hand into Johnson's stom ach and walked away. Best approached Johnson, to ld Johnson that he saw the cocaine, and requested th at Johnson give it to him. Af ter Johnson gave Best the pl astic bag, Johnson was ar rested, handcuffed, and placed in a police vehicle. As Be st was talking to Johnson, Best observed Payne walking away but glancing ba ck several times in their direction. Best apprehended Pa yne and arre sted and handcuffed him. Af ter the arrest, Payne told Be st that "he [Payne] didn't unde rstand how he coul d be arrested for [distributing] cocaine when Mr. Johnson didn't give him any money for it." Payne also told Best that "h e [Payne] had used crack cocaine in the past, that he had used it the night before and that- 3 - he had used it about th ree times during the month of October." At trial, Officer Best was permitted to testify, over Payne's objection, what Pa yne had told him when arrested ab out having used cocaine in the past, ha ving used it the ni ght before and about three times during the month of October, an d about no money having been exchanged fo r the cocaine. Payne testified, on the other hand, to a differen t version of what had occurred. He stated that he had seen Johnson on his bicycle stopped in the street. When Pa yne approached, Johnson showed him the plastic bag, which Johnson said he had found in the street. Johnson handed Payne the bag and aske d Payne if he thought the conten ts "was real." Payne replied he did not know and handed the bag back to Johnson. Pa yne denied havi ng seen Best watching him. Payne also denied asking Be st how he could be arrested for distribu ting cocaine when he did not receive any money from Johnson, an d Payne denied telling Best that he used cocaine in the past. The substance seiz ed 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- 4 - 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 ar gues that Payne's st atement rega rding his prior drug use was admi ssible because it wa s relevant to prove that Payne had knowle dge of the nature an d character of the- 5 - substance he distribute d, which was an elemen t of the offense the Commonwealth was required to prove. We disagree. The Supreme Cour t has addressed th e relevance and admissibility of prior drug-r elated conduct to pr ove an element of the charged offense. See Boyd v. Co mmonwealth , 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, 15 4-55, 300 S.E.2d 768, 773-74 (1983).

In Boyd , the defendant wa s charged with possession and distribution of he roin after he sold two ca psules of he roin to an undercover police officer. At tr ial, the officer was permitted to testify that a few days before the charged offense he observed Boyd making two simila r drug sales. The tr ial court in structed the jury that the ev idence of the prior offenses may not be considered as ev idence of the de fendant's guilt of the charged offense, but it may be considered as evid ence "of whether the prior offenses constitu ted part of a general scheme, of which the crime charged is a part." Th e Supreme Court reversed the defendant's conviction, hold ing that the eviden ce of the prior sales was unrelate d to the charged offense and the ev idence of the prior sales did no t fall within an except ion to the general rule excluding prior cr imes evidence. The Cour t concluded that because the evidence that Bo yd had committed ot her crimes was not- 6 - relevant, the prej udicial effect of the evidence outweighed its probative value.

In Eccles , the defendant was charged with selling marijuana. The trial court ad mitted evidence of the defendant's ha ving been seen smoking marijuana on prior occasi ons in order to prove that he was familiar with marijuana and kn ew "what the contents of these bags might be or what the expediti on was about." The Supreme Court, relying on Boyd , held that ev idence of the defendant's pr ior drug use was in admissible to pr ove the defendant knew that the subs tance he possesse d was marijuana. The fact that Eccles had previously used marijuana and had knowledg e of the nature and character of marijuana was unre lated to the charged offense and did no t tend to prov e that Eccles knew that the substance in the bag wa s marijuana or that a sale of ma rijuana was being made. The Cour t reversed the defend ant's convic tion and remanded, statin g "[s]ince we have no way of knowin g the effect of the court's admi ssion of testimony as to defendan t's prior criminal acts of smok ing marijuana ha d upon the mind s of the jury, we cannot say that the er ror was not pr ejudicial." Eccles , 214 Va. at 22-23, 197 S.E.2d at 333. Similarly, in Donahue the defendant was charged with possession with intent to distri bute PCP after po lice officers executed a search warr ant at the residence sh e occupied with her "husband" and foun d PCP in the residence. At trial, the court- 7 - admitted evidence that on a prior oc casion PCP had been seized from her when she was arrested along with ot hers who were seen handling PCP in an au tomobile. The trial judge also admitted evidence that when sh e was arrested for the prior posses sion of PCP, she confessed to selling it. The court admitted evidence of the prior possessi on to prove that she wa s aware of the presence and nature of th e PCP seized from her residence and knowingly possessed it withthe intent to distribute. Inreversing the conviction for errone ously admitting the other crim es evidence, the Supreme Court held that the ev idence of prior possession of PCP was unrelated to the charged cr ime and did not tend to prove that Donahue possesse d PCP with the intent to distribute. See Donahue , 225 Va. at 156, 300 S.E.2d at 774. This case is contro lled by the Su preme Court's decisions in Boyd , Eccles , and Donahue . Evidence of the de fendant's pr ior drug use was not probat ive of whether he distri buted cocaine to Johnson on the occasion observed by Officer Be st. The eviden ce in no way substantiates the events observed by Of ficer Best. It has no tendency to prov e that Payne made the di stribution. Proof that Payne admitted using co caine on prior recent occasions pr oves only that he has a pr opensity to use cocaine and as su ch the evidence is highly prejudicial, particularly when co mpared to any minimal incidental value the ev idence has in establis hing that Payne may be familiar with the nature of a pa rticular drug. The evidence- 8 - that Payne had a propen sity to use an d possess cocain e is highly prejudicial in th at it strongly suggests to the jury that Payne probably committed the charged offe nse. We reject the Comm onwealth's argument that because the prosecution is required to prove that a defe ndant knows the nature and character of the substance he possessed, the Co mmonwealth is entitled to prov e knowledge by showing pr ior use and familiarity with the same drug. If the Commonwealthwere allowed to prove, as an exception to the general ru le prohibiting other crimes evidence, that anaccused 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 de fendant had sold imitation crack co caine two months before the char ged offense was "a separate act without logical or natura l connection with [defendant's] present charge of possession of imitation cocaine with intent to di stribute" and, th us, inadmi ssible). Our Supreme Court expressly reje cted a similar claim advanced by the Common wealth in Donahue in which the Comm onwealth relied upon the Fourth Circuit case of United States v. Samuel , 431 F.2d 610 (4th Cir. 1970). The Donahue decision rejectedthe holding in- 9 - Samuel that evidence of an accused's prior of fense to prove that he had knowledge of the character and presence of a specific drug was admissible inthe 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 ac cused has knowledg e of the nature and character of the drug possessed to re fute a claim or defense of "innocent action," which is es sentially the claim advanced by Payne. For the foregoin g reasons, we hold that the tr ial court erred by admitting the evidence that Pa yne used cocaine the night before and three times du ring the month of October. We cannot conclude, without usurpi ng the role of the fact finder, that the trial court's error in admitting th e evidence was harmless. See Lavinder v. Commonwealth , 12 Va. App. 1003, 10 05, 407 S.E.2d 910, 911 (1991) ( en banc ). Accordingly, we reverse the conv iction and remandthe case to the trial court fo r such further pr oceedings as the Commonwealth may elect. Reversed and remanded.