Opinion
Record No. 1299-93-3
Decided: December 20, 1994
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY, Duncan M. Byrd, Jr., Judge
Affirmed.
Roland S. Carlton, Jr. (Edmunds, Willets Hicks, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Barrow and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant, Danny Lee Kennedy, appeals from a bench trial in which he was convicted for possession of cocaine with the intent to distribute. Kennedy assigns as error the trial court's admission of police testimony concerning papers found in his wallet at the time of his arrest. We affirm the judgment of the trial court because the testimony was relevant and Kennedy's "best evidence" objection now being raised on appeal was not timely made at trial.
I. RELEVANCE
The police officer's testimony concerning the papers found in Kennedy's wallet was relevant because it went toward the ultimate issue of whether Kennedy intended to distribute the cocaine found on him upon his arrest. " 'Any fact, however remote, that tends to establish the probability or improbability of a fact in issue is admissible.' '[W]hile a single circumstance, standing alone, may appear . . . immaterial or irrelevant, it frequently happens that the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.' " Wynn v. Commonwealth, 5 Va. App. 283, 291, 362 S.E.2d 193, 198 (1987) (citations omitted). See also Cantrell v. Commonwealth, 7 Va. App. 269, 287, 373 S.E.2d 328, 337 (1988). At Kennedy's trial it was undisputed that, at the time of his arrest, he had in his possession a large amount of cocaine, some of it individually packaged, and separate stashes of cash compartmentalized in his wallet, both of which were indicative of a person selling drugs, according to the testimony of the arresting officer. Kennedy was also placed under arrest at a location where drug sales were known to often occur. The officer's testimony about the dollar figures and first names listed on the papers found in Kennedy's wallet may have been insufficient in itself, but when combined with the other circumstances proven at trial, this testimony was relevant in proving Kennedy's intent to distribute cocaine.
"[T]he trial court is . . . required to employ a balancing test to determine whether the prejudicial effect of the evidence sought to be admitted is greater than its probative value. This responsibility is a matter submitted to the sound discretion of the trial court, and will not be disturbed on appeal absent a clear abuse of discretion." Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988) (citing Clozza v. Commonwealth, 228 Va. 124, 135, 321 S.E.2d 273, 280 (1984)). In this case, we cannot say that the trial court abused its discretion in overruling Kennedy's relevancy objection.
II. BEST EVIDENCE
Kennedy testified on his own behalf at trial after the police officer testified concerning the pieces of paper found in Kennedy's wallet. On cross-examination of Kennedy, his defense counsel objected to questions asked of Kennedy about the pieces of paper:
Your Honor, I'm going to object to this line of questioning right now. The client, I mean the witness has already testified and we are talking about pieces of paper that were, that I haven't seen yet and we are not sure even exists yet. We have some testimony about it but . . .
Even assuming, arguendo, that Kennedy's objection raised the best evidence rule, this objection must fail for two reasons. First, as defense counsel's objection points out, the police officer's testimony about the pieces of paper was already in evidence. Therefore, defense counsel's objection concerning the cross-examination of Kennedy about the papers was not timely. Second, Kennedy's testimony established that the pieces of paper in question were returned to him by the police after his release. Thus, the Commonwealth, through Kennedy's possession of the pieces of paper, established the existence of an excuse for non-production of the originals. The onus of producing the papers in order to keep out any secondary evidence about their contents would have been on Kennedy.
Affirmed.