Opinion
Record No. 2113-92-4
Decided: May 31, 1994
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, Richard B. Potter, Judge
Affirmed.
E. E. Sanders, Jr., for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Willis, and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
We affirm Dean Cralow Ladson's conviction of possession of cocaine with intent to distribute, in violation of Code Sec. 18.2-248 because the trial court did not err in (1) refusing to instruct the jury to regard circumstantial evidence with caution, or (2) admitting in evidence testimony of a hand signal given to police by an informant.
A Prince William County Police Officer gave a confidential informant money to arrange to buy drugs from Ladson. The police officer instructed the informant to tap her fingers on the roof of the car to confirm that Ladson had drugs in her vehicle.
The informant picked Ladson up and drove a few minutes. She then raised her left hand out of the car and began tapping her fingers and hand on the roof. The police officer then stopped the informant's vehicle.
As the officer approached the car, he saw Ladson pull a plastic baggie from his pants. Ladson was then removed from the car by two other police officers. A struggle ensued, and Ladson was able to remove the baggie from his pocket and throw it to the ground. The baggie contained 2.68 grams of cocaine.
The jury instruction question is controlled by Johnson v. Commonwealth, 2 Va. App. 598, 347 S.E.2d 163 (1986). Johnson held that because circumstantial evidence is as competent as direct evidence, a trial court's refusal to give a cautionary instruction on circumstantial evidence was not an abuse of discretion. Id. at 604, 347 S.E.2d at 167.
Ladson next argues that the hand signal used by the police officer's confidential informant was inadmissible hearsay. "The rule against hearsay prohibits, subject to many exceptions, the admission of extra-judicial statements only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted." Church v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 825 (1985). "If a statement is offered for any purpose other than to prove the truth or falsity of the contents of the statement, such as to explain the declarant's conduct or that of the person to whom it was made, it is not objectionable as hearsay." Hamm v. Commonwealth, 16 Va. App. 150, 156, 428 S.E.2d 517, 521 (1993). For instance, the rule against hearsay does not operate to exclude evidence of a message offered for the mere purpose of explaining or throwing light on the conduct of the person to whom it was made. Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960). See also Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506, 508 (1979).
Here, the informant's hand signal was not offered to prove the truth of the message conveyed by the hand signal, but to explain why the police officer stopped the vehicle. Because the hand signal was not offered for the truth of the matter asserted, it was not hearsay.
Accordingly, Ladson's conviction is affirmed.
Affirmed.