COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued by teleconference 

TYRONE DUNBAR 

 OPINION BY 

v. Record No. 2029-97-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 30, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 Lee W. Kilduff (Morchower, Luxton & Whaley, 

on brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

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

for appellee. 

 Tyrone Dunbar ("defendant") was convicted by bench trial of 

possession of cocaine with intent to distribute in violation of 

Code § 18.2-248. On appeal, defendant contends: 1) the trial 

court erred by admitting evidence that he committed prior crimes, 

and 2) the evidence was insufficient to sustain his conviction. 

We find no error and affirm. 

 I. 

 FACTUAL BACKGROUND 

 On January 28, 1997, Chesterfield County police executed a 

search warrant for cocaine and cocaine paraphernalia at 

defendant's apartment. Upon entry, police found defendant 

standing alone in the living room. Underneath a sofa in the 

living room, Sergeant James Herring, one of the officers who 

searched the apartment, found a bag containing cocaine inside a 

typewriter case. Directly in front of the sofa, police found a 

"couple of coasters," one of which contained a razor blade and a 
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rock of cocaine. On the right side of the sofa, police found "a 

metal pipe that had cocaine residue in it" lying on a chair. 

Under the chair, police found an Altoids mint box, which 

contained "a cleaner for cleaning metal pipes used to smoke crack 

cocaine." 

 While still in the apartment, the police advised defendant 

of his Miranda rights. After indicating that he understood his 

rights, defendant agreed to answer police questions. 

 At trial, Sergeant Herring testified concerning the search 

of defendant's apartment and the questions police asked defendant 

in the apartment. Referring to the cocaine, Herring asked 

defendant "if he sold a little bit to make ends meet." According 

to Herring, defendant replied, "yes." 

 Defendant objected to this question, arguing that it 

constituted inadmissible evidence of a past crime. The court 

overruled the objection, finding that "the question as posed 

really does not deal with past acts, but in fact deals with a 

statement that is on-going, 'Do you, in fact, sell a little bit 

to make ends meet' . . . ." 

 On cross-examination by defendant's counsel, Herring 

explained he asked the question in the present tense, stating, "I 

asked him does he sell. I did not ask him in the past tense. I 

asked him in the present tense does he sell." Herring also asked 

defendant whether he had smoked any cocaine on the day of the 

search. Defendant replied he did "not smoke cocaine right now 

because he is applying for a job that requires a urinalysis upon 

employment." 
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 Defendant subsequently moved to strike on the ground that 

the evidence did not prove beyond a reasonable doubt his intent 

to distribute cocaine. The court overruled the motion and 

subsequently found defendant guilty. 

 II. 

 OTHER CRIMES 

 The Commonwealth argues that Herring's testimony regarding 

defendant's sales of cocaine does not relate to prior crimes 

committed by defendant because the police inquiry addressed 

present conduct. Indeed, the trial court found that the inquiry 

related to present conduct. However, defendant's admission 

logically implicates the commission of past crimes as well and, 

on that basis, we address defendant's contention that Herring's 

testimony constitutes inadmissible evidence of prior crimes. 

 In support of his argument, defendant cites the cases of 

Donahue v. Commonwealth, 225 Va. 145, 300 S.E.2d 768 (1983); 

Eccles v. Commonwealth, 214 Va. 20, 197 S.E.2d 332 (1973); and 

Boyd v. Commonwealth, 213 Va. 52, 189 S.E.2d 359 (1972). These 

decisions, however, do not control the outcome of this case. 

 "It is well settled that evidence of other crimes or bad 

acts of an accused is generally inadmissible in a criminal 

prosecution." Wilkins v. Commonwealth, 18 Va. App. 293, 297, 443 

S.E.2d 440, 443 (1994) (en banc). "The purpose of this rule is 

to prevent confusion of offenses, unfair surprise to the 

defendant and a suggestion of 'criminal propensity,' thus 

preserving the 'presumption of innocence.'" Crump v. 

Commonwealth, 13 Va. App. 286, 289, 411 S.E.2d 238, 240 (1991) 
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(quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 

893 (1983)). 

 However, the law will not permit one accused 

of a crime to go unpunished simply because 

the Commonwealth cannot prove his guilt 

without bringing in some evidence which tends 

to show that he has committed other crimes. 

Thus, the general rule . . . must sometimes 

yield to society's interest in the 

truth-finding process, and numerous 

exceptions allow evidence of prior misconduct 

whenever the legitimate probative value 

outweighs the incidental prejudice to the 

accused. 

Wilkins, 18 Va. App. at 297, 443 S.E.2d at 443 (citations and 

quotations 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.'" Id. at 298, 443 S.E.2d 

at 443 (quoting Ferrell v. Commonwealth, 11 Va. App. 380, 390, 

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

 Among the exceptions to the general rule against 

admissibility, the accused's intent "may be shown by prior bad 

acts evidence when relevant to prove a material element or issue 

of the crime charged." Lafon v. Commonwealth, 17 Va. App. 411, 

417, 438 S.E.2d 279, 283 (1993). Such evidence is admissible to 

show, inter alia, the intent with which a crime is committed. 

Tomlinson v. Commonwealth, 8 Va. App. 218, 224, 380 S.E.2d 26, 

29-30 (1989) (holding that, in a trial for shooting into an 

occupied dwelling, evidence the defendant shot into a second 

dwelling in the same evening was properly admitted to show the 

defendant's intent). 
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 Furthermore, evidence of other crimes may be admitted when 

"'the evidence is connected with or leads up to the offense for 

which the accused is on trial' or when 'the other crimes 

constitute a part of the general scheme of which the crime 

charged is a part.'" Rodriguez v. Commonwealth, 249 Va. 203, 

206, 454 S.E.2d 725, 726 (1995) (quoting Kirkpatrick v. 

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). The 

admissibility of such evidence is based on the fact that it is 

often "impossible to give a connected statement showing the crime 

charged without incidental reference to . . . contemporaneous and 

similar crimes . . . ." Kirkpatrick, 211 Va. at 272, 176 S.E.2d 

at 805. The rationale for admitting evidence of related crimes 

is also stated in Scott v. Commonwealth: 

 Where a course of criminal conduct is 

continuous and interwoven, consisting of a 

series of related crimes, the perpetrator has 

no right to have the evidence "sanitized" so 

as to deny the jury knowledge of all but the 

immediate crime for which he is on trial. 

The fact-finder is entitled to all of the 

relevant and connected facts, including those 

which followed the commission of the crime on 

trial, as well as those which preceded it; 

even though they may show the defendant 

guilty of other offenses. Evidence of such 

connected criminal conduct is often relevant 

to show motive, method, and intent. Indeed, 

it may be the only way in which such matters 

may be shown, as was the case here. 

228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984), quoted in

Satterfield v. Commonwealth, 14 Va. App. 630, 635-36, 420 S.E.2d 

228, 231-32 (1992) (en banc). 

 In Rodriguez, the Virginia Supreme Court distinguished the 

cases cited by defendant. In Donahue, Eccles, and Boyd, evidence 

that an accused previously sold or used drugs was inadmissible 
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because those acts "were wholly unrelated to the offenses for 

which the respective defendants were on trial." Rodriguez, 249 

Va. at 207, 454 S.E.2d at 727. See also Wilson v. Commonwealth, 

16 Va. App. 213, 221, 429 S.E.2d 229, 234 (1993) (stating that 

Donahue, Eccles, and Boyd stand for the proposition that "prior 

sales of drugs do not, without more, tend to prove that an 

accused on another unrelated occasion intended to possess or sell 

drugs"). 

 Applying these principles to this case, we find no error in 

the trial court's admission of Herring's testimony regarding 

defendant's prior sales. When police found cocaine in 

defendant's apartment, defendant admitted to selling small 

quantities of the drug in order to make money. Herring asked 

defendant whether "he sold a little bit [of cocaine] to make ends 

meet." Defendant replied, "yes." Defendant’s admission gives 

rise to the inference that he was selling cocaine on a regular 

basis. 

 Defendant's admission that he was selling drugs, although 

evidencing his commission of prior crimes, establishes "a general 

scheme of which the crime charged is a part." The evidence was 

probative of defendant's present intent to distribute the cocaine 

found in his apartment. Unlike the cases on which defendant 

relies, here, the Commonwealth did not present evidence of prior 

crimes that was "wholly unrelated" to the offense for which he 

was on trial. Defendant's admission that he was selling drugs 

established an on-going "general scheme" involving the regular 

sale of drugs. Thus, under the principles enunciated in 
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Rodriguez, the trial court properly admitted evidence of 

defendant's prior crimes "because it was 'so intimately connected 

and blended with the main facts adduced in evidence' that it 

should not be excluded from consideration." Rodriguez, 249 Va. 

at 206, 454 S.E.2d at 727 (quoting Kirkpatrick, 211 Va. at 273, 

176 S.E.2d at 806). 

 For the foregoing reasons, we find no error in the trial 

court's admission of Herring's testimony. 

 III. 

SUFFICIENCY OF THE EVIDENCE 

 Defendant also contends the evidence was insufficient to 

prove he intended to distribute the cocaine found in his 

apartment. We disagree. 

 "'On appeal, we view the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. The judgment of a trial 

court sitting without a jury is entitled to the same weight as a 

jury verdict and will not be set aside unless it appears from the 

evidence that the judgment is plainly wrong or without evidence 

to support it.'" Wilkins, 18 Va. App. at 295, 443 S.E.2d at 442 

(quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 

415, 418 (1987)). We "must discard all evidence of the accused 

that conflicts with that of the Commonwealth and regard as true 

all credible evidence favorable to the Commonwealth and all fair 

inferences reasonably deducible therefrom." Lea v. Commonwealth, 

16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). "The weight 

which should be given to evidence and whether the testimony of a 
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witness is credible are questions which the fact finder must 

decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 

S.E.2d 598, 601 (1986). 

 "Possession with intent to distribute is a crime which 

requires 'an act coupled with a specific intent.'" Stanley v. 

Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) 

(quoting Adkins v. Commonwealth, 217 Va. 437, 440, 229 S.E.2d 

869, 871 (1976)). "[F]or a defendant to be convicted of 

possession of a controlled substance with the intent to 

distribute, the Commonwealth must prove that the defendant 

possessed the controlled substance contemporaneously with his 

intention to distribute that substance." Id. Because direct 

evidence is often impossible to produce, intent may be shown by 

circumstantial evidence that is consistent with guilt, 

inconsistent with innocence, and excludes every reasonable 

hypothesis of innocence. Wilkins, 18 Va. App. at 298, 443 S.E.2d 

at 444. 

 Here, police found cocaine in defendant's apartment. Upon 

questioning, defendant admitted to selling small quantities of 

the drug for his pecuniary gain. He also denied present use of 

cocaine. Although defendant contends the presence of drug 

paraphernalia is probative of his intent to personally use 

cocaine, and not to distribute, such evidence does not 

conclusively refute a finding of intent to distribute. See

Stanley, 12 Va. App. at 869, 407 S.E.2d at 14-15 (stating that 

the trier of fact is entitled to weigh all the circumstances in a 

given case and that "a conviction for possession with the intent 
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to distribute may be upheld even though the quantity of drugs 

seized is consistent with personal use"). 

 Furthermore, although defendant made statements to police 

that would indicate he possessed the cocaine for personal use 

only, he also stated that he was not using drugs because of 

employment-related drug screening. The trial court was entitled 

to disbelieve his explanation and conclude he lied to conceal his 

guilt. See Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 

S.E.2d 233, 235 (1998). We find the evidence is sufficient to 

conclude beyond a reasonable doubt that defendant possessed 

cocaine with the intent to distribute. 

 For the foregoing reasons, we affirm. 

 Affirmed.