                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia


TIMOTHY WAYNE ABBOTT
                                          MEMORANDUM OPINION * BY
v.   Record No. 1887-98-3                JUDGE SAM W. COLEMAN III
                                             JANUARY 18, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                    Charles J. Strauss, Judge

          Mark T. Williams (Williams, Morrison, Light &
          Moreau, on brief), for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Timothy Wayne Abbott was convicted following a jury trial of

first-degree murder of his wife, Melissa Abbott, in violation of

Code § 18.2-32, and use of a firearm in the commission of a felony

in violation of Code § 18.2-53.1.   On appeal, Abbott argues that

the trial court erred by admitting:   (1) testimony from the

victim's friend that the victim had stated that she was afraid of

Abbott; (2) a tape recording of a telephone conversation between

Abbott and an unidentified woman; (3) evidence of Abbott's

firearms collection; (4) evidence that Abbott was the beneficiary

of the victim's life insurance policy; and (5) evidence that

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Abbott previously struck the victim.    For the reasons that follow,

we affirm the convictions.

                               BACKGROUND

        Viewed in the light most favorable to the Commonwealth, the

evidence established that on February 8, 1997, at approximately

8:00 p.m., the victim was shot and killed by a single gunshot

wound as she returned home from work.       Ronald Burch, the Abbotts'

neighbor, testified that shortly after 8:00 p.m., Timothy Wayne

Abbott came to Burch's house and pounded on his door.      Burch

described Abbott as hysterical.    Unable to understand what Abbott

was mumbling, Burch followed Abbott to his home where Burch

observed that the front door had been shattered and a purse and

firearm were lying on the porch.    Burch found Abbott inside the

residence, slumped by the bed in the master bedroom.      Abbott asked

Burch if he had called 911.    Abbott stated that he had shot his

wife.    Burch quickly dialed 911 and waited for the authorities to

arrive.

        When the authorities arrived, the victim was found lying to

the right of Abbott's pick-up truck which was parked in the

driveway.    Abbott was lying over the victim's body, crying.      The

victim's keys were in the front door of the residence and the lock

was unlocked.    A bullet casing was found 4'7" from the front wall

of the residence, and a bullet was found in the front yard.




                                - 2 -
        At trial Abbott testified that he loved his wife dearly and

that they were devoted to one another.    Abbott testified that he

kept a gun with him at all times for protection.    The gun was

always in immediate reach, loaded, and with the safety off.    He

stated that when he was not traveling as part of his employment as

a truck driver, he kept the gun in the house for protection.

Abbott testified that his house had been broken into on one

occasion, and on a separate occasion, a "peeping tom" had been

seen near the house.

        On the day of the shooting, Abbott arrived home at

approximately 7:00 p.m. and fell asleep on the daybed in the

living room.    He testified that he was awakened by a loud noise.

"[P]anic stricken," Abbott noticed that the front door was open.

Abbott testified that the next thing he remembered was that "the

gun was in his hand and that it had just been fired."    He observed

the person he shot move away from the front door, so he proceeded

onto the porch.    At that point, he realized that he had shot his

wife.

        Abbott testified that he first called 911, then went to his

neighbor's house and asked him to call for help.    When Abbott

returned from his neighbor's house, his wife's body was lying in

the driveway by the pick-up truck.

        When asked about a life insurance policy and their financial

situation, Abbott testified that he was unaware that his wife had


                                - 3 -
a life insurance policy and of any financial problems they may

have been having.   He stated that he was not involved in paying

the bills or in any aspect of the household finances.

     The assistant chief medical examiner testified that the

victim died from a single gunshot wound to the chest, just left of

center.   The bullet passed through the chest cavity from right to

left, causing internal injuries and bleeding.   The medical

examiner testified that the entrance and exit wounds were

horizontal.   A forensic scientist testified that Abbott held the

firearm approximately eighteen to thirty-six inches away from the

victim when he fired the weapon and that at least five and

one-half pounds of pressure were required to pull the trigger.

     The Commonwealth also introduced the evidence of a friend of

the victim who testified that Abbott struck the victim two weeks

before the shooting, that he repeatedly called her derogatory

names, and that he criticized her about her appearance.   Another

friend of the victim testified over objection that the victim had

told her she was afraid of Abbott.    In addition, the Commonwealth

introduced an audio recording of a telephone conversation that

Abbott had with an unidentified female in which Abbott made

derogatory remarks about his wife and discussed coming to the

woman's house "for a drink" and to "watch t.v. in her bedroom."




                              - 4 -
                               ANALYSIS

     "'The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion.'"     Crews v.

Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)

(citation omitted).    "Evidence which 'tends to cast any light upon

the subject of the inquiry' is relevant."    Cash v. Commonwealth,

5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988).      Evidence which

tends to prove a material fact is relevant and admissible, unless

excluded by a specific rule or policy consideration."     Evans v.

Commonwealth, 14 Va. App. 118, 122, 415 S.E.2d 851, 853-54 (1992).

A fact is material if it tends to prove an element of an offense

or defense.   Johnson v. Commonwealth, 2 Va. App. 598, 601, 347

S.E.2d 163, 165 (1986).    "Every fact, however remote or

insignificant, that tends to establish the probability or

improbability of a fact in issue, is admissible."     Epperly v.

Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982)

(citation omitted).

              A.   Victim's Prior Statement of Fear

     Abbott argues that the trial court erred in admitting Patty

Lacks' testimony that the victim, one month prior to the shooting,

stated that she was afraid of Abbott.     Abbott argues that the

statement was not admissible under the state-of-mind exception to

the hearsay rule because the Commonwealth failed to show that the


                               - 5 -
statement was material, relevant, and otherwise reliable.

Further, he argues that there was no evidence that the victim's

state of mind was ever communicated to him.

     "'"Hearsay evidence is testimony in court . . . of a

statement made out of court [that is] offered as an assertion to

show the truth of matters asserted therein, and thus resting for

its value upon the credibility of the out-of-court asserter."'"

Taylor v. Commonwealth, 28 Va. App. 1, 9, 502 S.E.2d 113, 117

(1998) (en banc) (citations omitted).

          If, however, the statement is admitted to
          prove some other extraneous fact, such as
          that the statement was in fact made, the
          state of mind of the declarant, or notice or
          knowledge, then the statement is not hearsay
          and will be admissible if relevant and not
          otherwise violative of another rule of
          evidence.

Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22

(1992) (citing Evans-Smith v. Commonwealth, 5 Va. App. 188, 197,

361 S.E.2d 436, 441 (1987)).    The state of mind of a homicide

victim may be relevant and material where the defendant contends

that the death was the result of suicide, accident, or

self-defense.   See Hanson, 14 Va. App. at 188, 416 S.E.2d at 23.

          For the state of mind of the victim to be
          relevant to prove the state of mind of the
          accused, some nexus must exist which
          inferentially implicates the accused, such
          as by showing "previous threats made by the
          defendant towards the victim, narrations of
          past incidents of violence on the part of
          the defendant or general verbalizations of
          fear of the defendant."

                               - 6 -
Id. at 188-89, 416 S.E.2d at 23 (citation omitted).     Thus, as we

noted in Hanson, the victim's state of mind may be relevant to

prove the defendant's state of mind where it has been

communicated to the defendant.   However, the relevance of the

victim's state of mind may also be established by showing some

other nexus "which inferentially implicates the accused."     Id.

Accordingly, the Commonwealth is not limited to establishing

relevance by proving that a victim's statements were

communicated to the defendant, if the statement showing the

victim's state of mind is shown to reflect the defendant's state

of mind or relationship with the victim by other independent

evidence.   See id.; cf. Elliot v. Commonwealth, 30 Va. App. 430,

517 S.E.2d 271 (1999).   But see Clay v. Commonwealth, 30 Va.

App. 650, 519 S.E.2d 393 (1999) (rehearing en banc pending).

     At trial, Lacks testified that approximately one month before

the shooting, she heard the victim state that she was afraid of

Abbott.   Over objection, the trial court admitted the testimony,

finding that it was relevant to prove the victim's state of mind,

which tended to prove the nature of the marital relationship.

     Abbott testified that the victim's death was an accident,

rather than an intentional act by him, and that their marriage

was "a very good one."   Abbott's state of mind was a critical

issue in the case in that it was relevant and material to

whether the shooting was accidental.   See Elliot, 30 Va. App. at


                              - 7 -
438, 517 S.E.2d at 275.    The victim's state of mind was relevant

to prove the nature of the marital relationship which, in turn,

was probative of Abbott's state of mind and whether he harbored

a motive and intent to kill his wife.    See Compton v.

Commonwealth, 219 Va. 716, 729, 250 S.E.2d 749, 757 (1979)

(evidence of prior relations existing between accused and victim

relevant to issue of whether death was accidental).    The

victim's statement that she feared her husband occurred within

one month of the shooting.    The statement and circumstances

under which it was made do not suggest fabrication and

contrivance.   The evidence of the victim's fearful state of mind

was also corroborated by the Commonwealth's evidence that Abbott

had struck the victim within two weeks of the shooting and that

he often called her derogatory names and "ordered the victim

around."   Therefore, the victim's state of mind was relevant and

admissible.    See Hanson, 14 Va. App. at 188-89, 416 S.E.2d at

23.

                     B.   Answering Machine Tape

      Abbott argues that the trial court erred by admitting a tape

recording of a telephone conversation which suggested that Abbott

was engaged in an extramarital affair.   Abbott, relying on Brown

v. Commonwealth, 3 Va. App. 182, 348 S.E.2d 849 (1986), argues

that the tape recording, which failed to identify the female

participant or when the conversation occurred, was inadmissible


                               - 8 -
because the conversation was simply too speculative and

conjectural.

     "[I]n a prosecution for the murder of one's spouse the

Commonwealth generally may introduce evidence of marital

infidelity and may offer relevant evidence to show marital

disharmony or to rebut evidence of marital bliss."   Brown, 3 Va.

App. at 185, 348 S.E.2d at 851.   During cross-examination, the

Commonwealth was permitted, over objection, to introduce portions

of an answering machine tape recording that was recovered by the

victim's stepmother three to four weeks after the shooting.       In

the taped conversation, an unidentified woman invited Abbott to

her home to have drinks and watch television in her bedroom.      On

the tape, Abbott described the victim in angry terms, using

profanity.    Abbott admitted that the male voice "sounded like" him

but testified that he did not recall the conversation and could

not identify the speakers.

     The Commonwealth proffered the tape recording to rebut

Abbott's assertion that he was devoted to his wife and that they

had a "very good," stable marriage.    The evidence was relevant

to prove the relationship in the recent past between Abbott and

the victim.

     Moreover, Abbott's reliance on Brown is misplaced.      In

Brown, the defendant maintained that his wife was killed by an

intruder.    Evidence was introduced that the defendant had given


                               - 9 -
gifts to two women four to eight years prior to the wife's

murder and that the defendant had photographed one of the women.

There was no direct evidence of a sexual relationship between

the defendant and either of the women.   Under these

circumstances, we concluded that the

          innocuous and inclusive nature of the
          evidence combined with the lapse of four to
          eight years between these incidents and the
          murder of [the victim] do not afford any
          "reasonable presumption or inference on
          matters in issue" and fail to provide a
          logical and natural connection to [the
          defendant's] guilt.

3 Va. App. at 186, 348 S.E.2d at 852.    Here, the evidence was

recent and relevant to establish the nature of the marital

relationship and to rebut Abbott's testimony of marital bliss.

The evidence was not remote; rather, the victim's stepmother

testified that she recovered the tape from the answering machine

a couple of weeks after the shooting.    Thus, the evidence was

probative of Abbott's motive.

              C.   Abbott's Familiarity With Firearms

     Next, Abbott argues that the trial court erred by allowing

the Commonwealth to elicit evidence regarding his gun collection

and by admitting into evidence a photograph of the collection.

Abbott contends that the trial court's rulings improperly allowed

the Commonwealth to impeach him by introducing extrinsic evidence

on a collateral issue.




                             - 10 -
     "A witness may not be cross-examined regarding any fact

irrelevant to the issues on trial when that cross-examination is

for the mere purpose of impeaching his credit by contradicting him

. . . [nor] may [he] be asked about any collateral independent

fact 'merely with a view to contradict him afterwards by calling

another witness.'"   Simpson v. Commonwealth, 13 Va. App. 604, 606,

414 S.E.2d 407, 409 (1992) (citation omitted).   "'The test as to

whether a matter is material or collateral, in the matter of

impeachment of a witness, is whether or not the cross-examining

party would be entitled to prove it in support of his case.'"

Williams v. Commonwealth, 16 Va. App. 928, 935, 434 S.E.2d 343,

347 (1993) (quoting Allen v. Commonwealth, 122 Va. 834, 842, 94

S.E. 783, 786 (1918)).

     During cross-examination of Abbott, the Commonwealth

undertook to discredit his claim that the shooting was accidental

by proving that he was knowledgeable and familiar with the use and

handling of firearms.    Abbott testified that he had a "little"

experience with firearms.   He admitted that he had been in the

Army and had been trained in the "basics" of firearm usage.    He

also acknowledged that he owned several firearms at the time of

the shooting and that he was familiar with using all of them.

Over Abbott's objection, the Commonwealth then tendered a

photograph showing his gun collection.   Abbott stated that the

picture accurately depicted the collection.   On re-direct


                              - 11 -
examination, Abbott pointed out that three of the weapons were BB

guns.

        The principle that prohibits a witness from being

cross-examined and impeached on a collateral issue is not

applicable here.    Generally, evidence impeaching a witness on a

collateral issue is irrelevant or of such little probative value

that admitting it would confuse the fact finder or divert the fact

finder's attention from the relevant issues.    Here, the evidence

regarding the vastness of Abbott's gun collection and his

experience with the weapons was relevant to disprove a material

issue that Abbott interjected into the case.    The evidence that

Abbott had an extensive gun collection and experience with

firearms was not offered solely to impeach his prior testimony

that he had a "little" experience with firearms but was offered to

disprove his contention that the shooting was accidental.    Proof

that a person is familiar with and has had training in the use of

firearms is a circumstance that a fact finder may consider in

determining whether to believe a person's claim that he

accidentally discharged a firearm which killed his spouse.    We

find that the trial court did not err by admitting the photograph

and by allowing the Commonwealth to inquire about the gun

collection.




                               - 12 -
                         D.   Life Insurance Policy

     Abbott next contends that the trial court erred by admitting

evidence that he was the beneficiary of the victim's $50,000 life

insurance policy purchased three years before the shooting.

Abbott argues that the evidence was remote and speculative and

contained little probative value.

     Whether an accused has knowledge of a fact or situation when

he behaves in a certain way or has a motive to behave in a certain

way may be relevant in determining the accused's intent.

1 Charles E. Friend, The Law of Evidence in Virginia § 12-6 (4th

ed. 1993).    However,

             "[b]efore a fact or circumstance is
             admissible in evidence against a party to
             show motive, such fact or circumstance must
             be shown to have probably been known to him,
             otherwise it could not have influenced him,
             for a man cannot be influenced or moved to
             act by a fact or circumstance of which he is
             ignorant."

Robinson v. Commonwealth, 228 Va. 554, 558, 322 S.E.2d 841, 843

(1984) (quoting Mullins v. Commonwealth, 113 Va. 787, 789-90, 75

S.E. 193, 195 (1912)).

     Although the Commonwealth sought to introduce evidence that

Abbott was experiencing financial difficulties, Abbott disavowed

any knowledge of the couple's financial problems, stating that

the victim had control over the household finances.    Further,

Abbott testified that even though he was initially aware that he

was the beneficiary of the victim's life insurance policy, he

                                  - 13 -
had forgotten about the policy until recently.    Moreover, he

points out that no evidence shows he had tried to collect on the

policy.   In fact, the evidence proves a claim was filed by the

victim's father, who was the administrator of the victim's

estate.

     Evidence of the life insurance policy was relevant to the

issue of whether Abbott had a motive for killing his wife.       See

Mullis v. Commonwealth, 3 Va. App. 564, 574, 351 S.E.2d 919, 925

(1987) (recognizing that defendant's knowledge that victim owned

life insurance policy naming defendant as beneficiary was

relevant to show motive).   Even though Abbott testified that he

had recently forgotten about the life insurance policy, he had

knowledge of the existence of the policy.   The fact that he

disavowed a present knowledge of the policy or of the couple's

dire financial situation goes to the weight of the evidence, not

its admissibility.   See generally Wise v. Commonwealth, 6 Va. App.

178, 188, 367 S.E.2d 197, 203 (1988); see also Duncan v.

Commonwealth, 2 Va. App. 717, 723-25, 347 S.E.2d 539, 543-44

(1986).   We find no abuse of discretion in the trial court's

determination that the probative value of the evidence exceeded

any prejudicial effect that may have resulted from its admission.




                             - 14 -
                      E.   Prior Physical Abuse

     Last, Abbott argues that the trial court's admission of

evidence that he previously had struck his wife was improper

character evidence.

     Evidence that an accused committed crimes or other bad acts

is inadmissible when offered to prove the accused committed or

likely committed the crime charged.    See Kirkpatrick v.

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

"[Similar crimes evidence] merely show[s] that [an accused] has

the propensity to commit the crime [charged] and this inference

has been held to be error because it reverses his presumption of

innocence."   Spence v. Commonwealth, 12 Va. App. 1040, 1045, 407

S.E.2d 916, 918 (1991).    However,

          [t]he many exceptions to the rule are as
          well established as the rule itself.
          Specifically, other crimes evidence is
          admissible where it shows the conduct and
          feeling of an accused toward his victim or
          establishes their prior relationship; where
          it proves motive or opportunity to commit
          the crime charged; where it proves an
          element of the crime charged; where it
          proves intent or guilty knowledge on the
          part of the accused or negates good faith or
          the possibility of mistake or accident;
          where it proves the identity of the accused
          as the one who committed the crime charged
          by showing criminal acts so distinct as to
          indicate a modus operandi; and where it
          demonstrates a common scheme or plan of
          which the crime charged is part. Thus, in
          order to be admissible under one of the
          exceptions, evidence of other crimes must
          tend to prove a material fact and its
          probative value "must outweigh the prejudice

                              - 15 -
             inherent in proving that an accused has
             committed other crimes."

Rodriguez v. Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d

419, 422 (1994) (en banc) (citations omitted).

        Joyce Davis testified, over objection, that two weeks

before the shooting Abbott and the victim visited Davis at her

home.    Just before leaving, Abbott ordered the victim to go

start the truck.    When the victim refused, Abbott became

frustrated and forcefully struck the victim in the face.      On

cross-examination, Abbott admitted that he hit the victim on

that occasion, but he maintained that it was a "playful" tap.

        Here, the evidence tended to establish the nature of the

marital relationship, which Abbott testified was a loving one,

and tended to show Abbott's feelings toward his wife, which he

later testified was devotion.    Evidence showing the relationship

between Abbott and his wife was probative to show Abbott's

motive and intent.     See Callahan v. Commonwealth, 8 Va. App.

135, 141-42, 379 S.E.2d 476, 480 (1989) (finding that evidence

of defendant's threats and assaults on wife and children was

properly admitted to show the defendant's relationship with his

victims, which proves motive and intent).    The evidence that

Abbott struck his wife falls within an exception to the rule

barring the admission of evidence of prior bad acts, and the

trial judge did not err by finding that the probative value of

the testimony outweighed any prejudicial effect.       See Rodriguez,

                               - 16 -
18 Va. App. at 280-81, 443 S.E.2d at 422.   Thus, the trial court

did not err by admitting the testimony.

     For the foregoing reasons, we affirm the convictions.

                                                         Affirmed.




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