COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

RICARDO BERRY 

v. Record No. 0347-95-4 OPINION BY 

 CHIEF JUDGE NORMAN K. MOON 

COMMONWEALTH OF VIRGINIA APRIL 2, 1996 

 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Quinlan H. Hancock, Judge 

 Glenn S. Wainer (Wainer & Ritter, P.C., on 

briefs), for appellant. 

 Robert B. Beasley, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Ricardo Berry appeals his conviction of distribution of 

cocaine, having previously been convicted of a like offense. 

Code § 18.2-248. Berry argues that the trial court erred in 

denying his motions in limine to suppress evidence of two prior 

drug transactions and of his previous conviction of a like 

offense. Because evidence of the two prior transactions was 

probative of whether Berry was properly identified and evidence 

of his prior conviction was necessary to prove his previous 

conviction of a like offense, we hold that the trial court did 

not err in admitting the evidence. We affirm. 

 On November 11, 1994, two police investigators went to a 

local Seven-Eleven for a prearranged meeting with Ricardo Berry 

and a third party who was acting as an "unwitting" go-between. 

Investigator Savage greeted Berry, spoke with him briefly, and 
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asked whether he could sell him an "eight ball" of crack cocaine. 

 Berry stated that he was not "doing anything", street lingo for 

selling drugs, and to check with him later. Investigator Savage 

was preparing to leave the scene in his vehicle when Berry called 

to him to wait because he had the drugs. Berry got into the car, 

and the transaction was completed. Investigator Turner observed 

the interaction between Savage and Berry. 

 Both Investigator Savage and Investigator Turner had seen 

Berry earlier. Savage had seen Berry about thirteen months 

before when he went to Berry's home with a third party in order 

to purchase drugs. The third party told Savage to stay outside 

and to give him the money. The third party went into the house 

and came out with Berry. Savage and Berry conversed for about 

ten minutes. 

 Investigator Turner had seen Berry on November 5, six days 

before the transaction in the instant case. He went to the same 

Seven-Eleven with an unwitting third party, who had previously 

sold drugs to Turner. Turner gave him an order for drugs that he 

knew would be too large for the third party to fill, because 

Turner wanted to learn the identity of the third party's 

supplier. When they arrived at the Seven-Eleven, the third party 

paged his supplier, Berry, who walked up from his nearby 

residence. Berry went into the Seven-Eleven, the third party 

followed him with the money, and then he and Berry walked out of 

the store. The third party gave the cocaine to Turner. 
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I. Prior Transactions

 The trial judge permitted the officers to testify concerning 

their prior meetings with Berry, on the ground that identity was 

at issue in the case. Berry's position throughout the trial was 

that he was at a nightclub in the District of Columbia on the 

night in question and was being misidentified. For the incident 

with Savage, the defense raised the issue of identity by asking 

Savage whether the preliminary hearing was the first time he had 

seen Berry. 

 Generally, evidence that shows or tends to show that the 

accused committed other crimes is not admissible for the purpose 

of proving that the accused committed the crime charged. 

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 

805 (1970). However, evidence of prior crimes may be admissible 

if it tends to prove any relevant fact of the offense charged. 

Black v. Commonwealth, 20 Va. App. 186, 192, 455 S.E.2d 755, 758 

(1995). One such fact is the identity of the accused. Where the 

defendant has questioned the accuracy of a witness' 

identification, testimony involving prior occasions where the 

witness has had occasion to become familiar with the defendant's 

appearance, even though it be during the commission of another 

crime, supports the identification and is admissible provided 

that its probative value outweighs the prejudice to the 

defendant. Black, 20 Va. App. at 192-93, 455 S.E.2d at 758; 

Lewis v. Commonwealth, 8 Va. App. 574, 579, 383 S.E.2d 736, 739 

(1989) (en banc). 
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 The accuracy of the officers' identification of Berry was 

questioned throughout the trial, from the opening statement 

through Berry's own testimony and that of his alibi witnesses. 

The identification issue was also raised on cross-examination of 

Savage. The officers' testimony concerning their prior contacts 

with Berry was highly relevant to prove that Berry was the 

individual who sold drugs to Savage on November 11. 

 The decision on whether the probative value of the evidence 

of other crimes outweighs any prejudice to the defendant is left 

largely within the sound discretion of the trial judge, and is 

reviewed only for abuse of discretion. Lewis, 8 Va. App. at 579, 

383 S.E.2d at 740. The officers' testimony concerning their 

prior contacts with Berry was highly probative on the issue of 

identity. Identity was the key issue in the trial. In these 

circumstances, we find that the trial court did not abuse its 

discretion in allowing the testimony. 

II. Prior Conviction

 The trial court allowed Berry's prior conviction for a like 

offense to be placed into evidence during the guilt phase of the 

trial. Although, as discussed above, evidence of other crimes is 

inadmissible if relevant only to show a probability of guilt or a 

propensity for criminal conduct, evidence of other crimes "is 

properly received if it is relevant and probative of an issue on 

trial, such as an element of the offense charged or the required 

predicate for enhanced punishment." Pittman v. Commonwealth, 17 

Va. App. 33, 35, 434 S.E.2d 694, 695 (1993). Conviction of a 
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prior like offense is an element of the charge as it was set 

forth in the indictment, and is also a necessary predicate to an 

enhanced penalty pursuant to Code § 18.2-248. 

 Berry seeks to distinguish Pittman on the ground that there 

now exists a bifurcated procedure for felony trials, with the 

sentencing phase conducted after the guilt phase. Code 

§ 19.2-295.1. However, in Farmer v. Commonwealth, 10 Va. App. 

175, 390 S.E.2d 775 (1990), aff'd on reh'g, 12 Va. App. 337, 404 

S.E.2d 371 (1991) (en banc), the Court upheld introduction of 

evidence of prior DUI convictions in the guilt phase of a 

bifurcated trial on charges of DUI as a third or subsequent 

offense. Farmer, 10 Va. App. at 179-80, 390 S.E.2d at 776-77. 

Under the rationale of Farmer, evidence of Berry's previous 

conviction for distribution was admissible in the guilt phase of 

the trial. 

 Berry cites Able v. Commonwealth, 16 Va. App. 542, 431 

S.E.2d 337 (1993), which contains language suggesting that proof 

of the prior conviction may not be an element of the offense of 

distribution of cocaine after having been previously convicted of 

a like offense. We find that language to be dictum unnecessary 

to the holding in Able and in conflict with the rationale of 

Farmer. 

 Accordingly, we hold that the evidence was properly 

admitted. 
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III. Cautionary Instruction

 Berry argues that the court's failure to give a cautionary 

instruction on the evidence of prior transactions constitutes 

reversible error.1 Berry is precluded under Rule 5A:18 from 

raising this issue because he failed to request a cautionary 

instruction at trial. The failure to request a cautionary 

instruction bars consideration of the issue on appeal. See

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

359 n.2 (1991); Morris v. Commonwealth, 14 Va. App. 283, 286-87, 

416 S.E.2d 462, 464 (1992) (en banc). This bar remains even 

where, as here, an objection to the testimony is made and 

overruled by the trial court. Morris, 14 Va. App. at 287, 416 

S.E.2d at 464. 

 For the foregoing reasons, the judgment of the trial court 

is affirmed. 

 Affirmed.

 

 1 Berry also argues that the jury should have been instructed 

that Investigator Turner "redacted his testimony [after the 

defense objection] regarding having bought drugs directly from the 

defendant." This claim has no support in the record, as Turner's 

testimony before and after the defense objection was consistent.