COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

BENIAH ABEL ALLEN 

 MEMORANDUM OPINION* BY 

v. Record No. 1745-95-2 JUDGE JAMES W. BENTON, JR. 

 SEPTEMBER 3, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Christopher F. Cowan (Cowan & North, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

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

brief) for appellee. 

 A jury convicted Beniah Abel Allen of possession of cocaine 

in violation of Code § 18.2-250. On this appeal, he contends 

that the trial judge erred in allowing evidence of his heroin use 

and permitting a detective to testify that his behavior was 

consistent with cocaine use. He further contends that the 

evidence did not prove beyond a reasonable doubt that he 

possessed cocaine. Because the admission of evidence concerning 

his addiction to heroin was irrelevant and prejudicial, we 

reverse the conviction. 

 I. 

 Allen was indicted and tried for possession of cocaine. 

During opening statements at trial, and over Allen's objection, 

the prosecutor told the jury that Allen admitted injecting heroin 

 

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

designated for publication. 
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on the day of his arrest. The Commonwealth's evidence proved 

that when Chesterfield County police officers executed a search 

warrant at a residence, they discovered Faith Franklin, the 

lessee of the residence, standing in the living room. Allen was 

lying facedown on a bed in another room. During a search of the 

residence, the police found in the living room closet a tin foil 

packet containing .05 grams of cocaine. 

 After a detective read Miranda warnings to Franklin and 

Allen, Allen talked with the detective. Allen said that he did 

not live at the house and denied that any drugs were in the 

house. Allen's speech was slurred, and he was unsteady on his 

feet. He did not have narcotics on his person. 

 The detective next questioned Franklin. She admitted that 

she used cocaine. During the questioning, Franklin removed from 

the underpants that she was wearing a tube she used to smoke 

crack cocaine. The police arrested Franklin three days later for 

possession of cocaine. She pled guilty to possession of both the 

cocaine residue in the tube and the cocaine in the closet. 

 After Franklin produced the tube the detective questioned 

Allen again. He testified that Allen admitted having smoked 

crack cocaine for several years but claimed that he now used 

heroin and "that heroin was his addiction." The detective 

further testified that Allen said "he shoots heroin often" and 

then showed needle marks on the back of his hand. The detective 

said that Allen also admitted buying cocaine earlier that day and 
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said that he already had smoked it with Franklin. 

 The detective further testified that Allen's eyes appeared 

bloodshot and watery, his speech was slurred, and his balance 

unstable. He also testified that Allen's physical appearance and 

demeanor were consistent with that of a person under the 

influence of cocaine. 

 In Allen's defense, Franklin testified to purchasing cocaine 

earlier that day, smoking all of it, and then hiding the "stem" 

in her panties. She stated that she did not smoke cocaine with 

Allen on the day of the search and that she last smoked cocaine 

at 8 p.m., before Allen arrived. She testified that Allen, who 

did not live at the house, arrived at her house five minutes 

before the execution of the search warrant and went directly to 

the bedroom. She also testified that she had never given Allen 

any reason to believe that she smoked or hid cocaine in her 

residence. 

 The jury found Allen guilty of possession of cocaine. The 

trial judge imposed the jury's recommended sentence of eight 

years. 

 II. 

 Allen contends that because the evidence of heroin use was 

irrelevant to the question whether he possessed cocaine and was 

highly prejudicial, the trial judge should have barred the 

testimony. In response, the Commonwealth states that Allen is 

not entitled to have his statement sanitized and that evidence of 
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past heroin use is indeed relevant to the possession of cocaine. 

 "The general rule is well established that in 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 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). 

 To be admissible, evidence must relate and 

be confined to matters in issue, and it must 

tend to prove or disprove these matters or be 

pertinent to them. It is fundamental that 

evidence of collateral facts or those 

incapable of affording any reasonable 

presumption or inference on the matter in 

issue because too remote or irrelevant cannot 

be accepted in evidence. Such evidence tends 

to divert the attention of the jurors to 

immaterial matters. If it has to do with 

other misconduct or other crimes committed by 

accused, it not only diverts the attention of 

the jurors, but may tend to prejudice them 

towards accused. 

Boggs v. Commonwealth, 199 Va. 478, 486, 100 S.E.2d 766, 772 

(1957)(citation omitted). In particular, "[e]vidence of prior 

drug-related conduct is irrelevant and inadmissible and does not 

fall within one of the Kirkpatrick exceptions where there has 

been no showing of an intimate relation or connection between the 

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

Commonwealth, 16 Va. App. 213, 222, 429 S.E.2d 229, 234-35, aff'd

en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993). 
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 In an earlier case, this Court rejected the Commonwealth's 

argument that when the accused makes an oral statement to the 

police, the entire statement, including irrelevant matters, is 

admissible as evidence. See Pierce v. Commonwealth, 2 Va. App. 

383, 345 S.E.2d 1 (1986). We ruled that when "[t]he 

objectionable portion of the statement can easily be separated 

from the remainder of the admission without adverse effect," the 

trial judge should admit "only that part relevant and material to 

the issue." Id. at 391, 345 S.E.2d at 5. 

 Following Pierce this Court also ruled as follows: 

 Where evidence has little or no probative 

value and has the potential for being very 

prejudicial, such as showing unrelated 

crimes, it is error for the trial court not 

to redact the prejudicial evidence, unless 

the evidence is inextricably connected to the 

other evidence or to do so would mislead the 

fact finder. Where the "objectionable 

portion of the statement [could] easily be 

separated from the remainder of the admission 

without adverse effect," it is error for the 

trial court not to do so, and if the 

prejudice caused by admitting the evidence 

outweighs its probative value, the error will 

be reversible. 

Ascher v. Commonwealth, 12 Va. App. 1105, 1119, 408 S.E.2d 906, 

915 (1991), cert. denied, 506 U.S. 865 (1992)(citation omitted). 

 The trial judge could easily have barred any testimony 

regarding Allen's heroin use. Allen first raised the issue of 

the statement in a motion in limine. Without hearing from the 

prosecutor concerning the relevance of the statement, the trial 

judge ruled that "statements by the defendant are always 
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admissible." Thus, during opening statement, the prosecutor 

informed the jury of Allen's heroin use. Later, during the 

Commonwealth's case-in-chief, the detective paraphrased Allen's 

statements regarding heroin use. 

 The Commonwealth has not articulated a reason why the heroin 

use was probative of whether Allen possessed cocaine. Allen's 

heroin addiction and the needle marks on his arm did not tend to 

prove whether he possessed the cocaine found in the residence. 

Moreover, unlike Williams v. Commonwealth, 11 Va. App. 149, 396 

S.E.2d 860 (1990), Allen's statement was not a verbatim recording 

and the question of the statement's voluntariness was not at 

issue. 11 Va. App. at 152, 396 S.E.2d at 862. Nothing in the 

record in this case indicates that the "objectionable portion of 

[Allen's] statement [could not have been] easily . . . separated 

from the remainder of the admission without adverse effect." 

Pierce, 2 Va. App. at 391, 345 S.E.2d at 5. 

 Allen's prior use of heroin was irrelevant. See Donahue v. 

Commonwealth, 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983). 

Irrelevant evidence is inadmissible. Bunting v. Commonwealth, 

208 Va. 309, 314, 157 S.E.2d 204, 208 (1967). Furthermore, the 

evidence was highly prejudicial because it proved Allen to be an 

admitted heroin addict and allowed the jury to improperly infer 

his guilt because of his propensity to possess and use another 

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

Considering that the trial judge could easily have barred the 
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evidence of heroin use and such evidence was irrelevant and 

highly prejudicial, we hold that the trial judge erred in 

admitting the evidence. 

 III. 

 "Only when trial error had no effect upon the outcome of the 

trial can the error have caused no prejudice and be harmless." 

Henshaw v. Commonwealth, 19 Va. App. 338, 347, 451 S.E.2d 415, 

420 (1994). This error was not harmless. During the 

prosecutor's opening statement and the detective's testimony, the 

jury learned of Allen's heroin use and addiction. The evidence 

not only branded Allen a heroin addict, but also could have been 

the basis of an impermissible propensity inference. However, 

Franklin testified that she did not smoke cocaine with Allen that 

evening. She also testified that she alone last smoked from the 

tube. If the jury chose to believe Franklin's testimony and did 

not find Allen responsible for the cocaine in the closet, it 

could have found that the evidence was not sufficient to find him 

guilty of cocaine possession. 

 "'Since we have no way of knowing the effect the court's 

admission of testimony as to defendant's prior criminal acts 

. . . had upon the minds of the jury, we cannot say that the 

error was not prejudicial.'" Donahue, 225 Va. at 156, 300 S.E.2d 

at 774 (citation omitted). "The jury was clearly exposed to 

improper, inflammatory and prejudicial evidence and suggestion 

and we are unable to find that it 'plainly appears from the 
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record and the evidence' that this error 'did not affect the 

verdict.'" Gravely v. Commonwealth, 13 Va. App. 560, 564, 414 

S.E.2d 190, 193 (1992)(citations omitted). 
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 IV. 

 Allen also asserts that the detective impermissibly 

testified to an ultimate issue of fact. The ultimate issue of 

fact was whether Allen possessed the cocaine. The detective 

testified only that Allen's "demeanor . . . was consistent with 

what [he had] observed in others who have been under the 

influence of cocaine." That testimony was not an opinion on the 

ultimate issue. 

 An accused's demeanor is not an element of Code § 18.2-250. 

 Furthermore, the detective never testified that Allen was 

actually under the influence of cocaine. A difference exists 

between an expert's opinion that a person is under the influence 

of a drug or that a person's conduct is consistent with someone 

under the influence. See Davis v. Commonwealth, 12 Va. App. 728, 

406 S.E.2d 922 (1991)(expert's opinion that an amount of 

marijuana was inconsistent with an intent to distribute did not 

constitute an impermissible comment on an ultimate issue of 

fact); Llamera v. Commonwealth, 243 Va. 262, 414 S.E.2d 597 

(1992)(whether quantity of cocaine would suggest an intent to 

distribute was an ultimate issue of fact). The testimony in this 

case did not violate the rule prohibiting comment upon the 

ultimate issue in fact. 

 We do not reach Allen's argument concerning the sufficiency 

of the evidence because the admission of his statements regarding 

his heroin use is reversible error. 
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 Reversed and remanded.