                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia


JOHNNY ANTHONY VALENTINE
                                                 OPINION BY
v.     Record No. 1110-97-3                JUDGE SAM W. COLEMAN III
                                              SEPTEMBER 1, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                        James F. Ingram, Judge
            Elwood Earl Sanders, Jr., Director
            Capital/Appellate Services (Public Defender
            Commission, on briefs), for appellant.

            H. Elizabeth Shaffer, Assistant Attorney
            General (Richard Cullen, Attorney General, on
            brief), for appellee.



     Johnny Anthony Valentine was convicted in a bench trial for

driving after having been declared an habitual offender, fourth

offense, in violation of Code § 46.2-357.      The sole issue on

appeal is whether the trial court erred in excluding Valentine's

evidence concerning his efforts to have his driving privilege

restored.    Because the trial judge did not abuse his discretion

in rejecting the evidence, we affirm Valentine's conviction.
                              BACKGROUND

     City of Danville Officer J.S. Bucchi testified that at

10:45 p.m. on December 13, 1996, he stopped a truck being driven

without its headlights activated.    When Bucchi approached the

truck and asked the driver for his operator's license and vehicle

registration, the driver handed the officer the vehicle

registration and stated that he needed to exit the truck to
obtain his driver's license.   The driver stood outside the truck,

fumbled through his wallet, and then fled.   Bucchi chased the

driver but was unable to apprehend him.

     When Bucchi returned to the truck, he found a receipt on the

ground.   He had not seen the driver drop the receipt.   The

receipt had the name "Johnny Valentine" written on it.    Bucchi

examined a photograph of Johnny Valentine from police records,

determined that Valentine resembled the driver, and obtained a

warrant for Valentine's arrest.   At trial, Bucchi identified

Valentine as the driver of the truck and as the person whose

photograph he viewed and charged with the violation.     Bucchi did

not retain the receipt he had found.
     Valentine admitted that he was an habitual offender.

Defending on the ground that he was not the driver, Valentine

presented evidence that the truck was registered to Rudolph Hall.

Valentine also testified that he was at home watching television

with his sister at the time in question.   When Valentine

attempted to present evidence about his efforts to have his

driving privilege restored, the trial judge sustained the

Commonwealth's relevancy objection.    Valentine made a proffer

that the excluded evidence would have proven that Valentine

retained an attorney in October 1995 to petition for restoration

of Valentine's driving privilege; that the attorney had obtained

an order from the trial judge authorizing an evaluation by VASAP;

that the attorney had informed Valentine that a hearing had been




                               - 2 -
set for December 3, 1996; and that Valentine was making an effort

to pay the fines and court costs necessary to obtain his license

reinstatement.   Valentine also sought to produce other evidence,

including several letters from an attorney advising Valentine

that his license restoration petition had been set for hearing

and that Valentine needed to pay the outstanding fines and court

costs before he could have his driving privilege restored.

     After the proffer, the Commonwealth's attorney stated:
          Judge, the only possible relevance that I can
          see, is I suppose if counsel is trying to say
          he wouldn't have done anything to jeopardize
          his ability to get his license back, then
          . . . then, I will withdraw my objection, but
          if that's the case, then I think I'm
          permitted to go into the substance of his
          prior convictions, because that certainly
          jeopardized his ability to get his driving
          status reinstated.

     Valentine claimed the evidence was offered to prove that he

had a motive not to risk driving when he was in the process of

having his driving privilege restored.

     The trial judge ruled that he would take
          judicial notice of the [o]rder that [t]he
          Court entered [making reference to the VASAP
          evaluation order], and I think that we could
          stipulate . . . I certainly will be willing
          to consider that he filed for restoration,
          but I think that's absolutely irrelevant as
          far as . . . the issues in here are
          concerned.


Thus, the trial judge took judicial notice of the fact shown by

the VASAP order that Valentine had petitioned for restoration and

that a VASAP referral had been made, but the trial judge ruled




                               - 3 -
the other proffered evidence inadmissible.   As to the weight that

the trial judge gave the evidence of Valentine's having

petitioned for his license and the VASAP referral, he held the

evidence to be "irrelevant."

     At the conclusion of the evidence, the trial judge convicted

Valentine of driving after having been declared an habitual

offender.

                               ANALYSIS
     Valentine first contends the Commonwealth conceded that the

evidence was relevant, and, therefore, it is barred from

asserting on appeal that the evidence was irrelevant or that the

trial court's ruling was harmless error.   We disagree.

     Although the Commonwealth's attorney stated at one point

that he would withdraw his objection, he did so on the condition

he would be able to examine Valentine about his prior

convictions.   However, the trial judge ruled on the objection and

held that he would consider a portion of the evidence and that

the balance was irrelevant and inadmissible.    Thus, the trial

judge did not consider whether the Commonwealth's attorney

conceded relevance or withdrew his objection.   Accordingly, the

relevance issue raised by the Commonwealth's attorney's objection

was decided by the trial judge.

     Valentine next argues that the excluded evidence was

relevant and, therefore, should have been admitted by the trial

judge.   We disagree.



                                - 4 -
     "The test establishing relevance is not whether the proposed

evidence conclusively proves a fact, but whether it has any

tendency to establish a fact at issue."        Wise v. Commonwealth,

6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988) (citing Johnson

v. Commonwealth, 2 Va. App. 598, 601, 347 S.E.2d 163, 165

(1986)).   "Evidence which bears upon and is pertinent to matters

in issue, and which tends to prove [or disprove] the offense, is

relevant and should be admitted."        Coe v. Commonwealth, 231 Va.

83, 87, 340 S.E.2d 820, 823 (1986); see Epperly v. Commonwealth,
224 Va. 214, 230, 294 S.E.2d 882, 891 (1982); Ragland v.

Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993).
          [T]he Virginia Supreme Court has said that
          relevant evidence is any evidence "which may
          throw light upon the matter being
          investigated, and while a single
          circumstance, standing alone, may appear to
          be entirely 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."

Hope v. Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833

(1990) (en banc) (quoting Peoples v. Commonwealth, 147 Va. 692,

704, 137 S.E. 603, 606 (1927)).    However, "[e]vidence of

collateral facts is generally inadmissible because it tends to

draw away the minds of the jury from the point in issue . . . and

mislead them."     Haynes v. Commonwealth, 104 Va. 854, 858, 52 S.E.

358, 359 (1905).    "The admissibility of evidence is within the

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



                                 - 5 -
disturbed on appeal in the absence of an abuse of discretion."

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988) (citing Coe, 231 Va. at 87, 340 S.E.2d at 823).

     Valentine offered the driving privilege restoration evidence

to rebut or disprove that he was the driver.   Valentine testified

in his own defense and denied driving.   He contends the evidence

that he had taken legal and administrative action to have his

driving privilege restored tends to prove he had a reason or

motive not to drive.   This evidence, he asserts, further supports

his claim that he was not the driver.
     The excluded evidence has no tendency to prove that

Valentine was not the driver of the vehicle.   Proof of motive to

commit an offense is admissible as tending to prove intent.       See

Robinson v. Commonwealth, 278 Va. 554, 557, 322 S.E.2d 841, 843

(1984).   Similarly, lack of motive is generally admissible to

prove lack of a reason or intent to commit an offense.     See

Oliver v. Commonwealth, 151 Va. 533, 543, 145 S.E. 307, 310

(1928); see also People v. Weatherford, 164 P.2d 753, 765 (Cal.
1945) (en banc).   Here, however, the proffered evidence at issue

has no logical tendency to prove lack of motive or intent.       The

evidence does not tend to prove that Valentine had a reason to

refrain from driving, or even that he had a reasonable

expectation that his driving privilege might be restored in the

foreseeable future.    The evidence has no more tendency to

disprove that he was the driver than his own testimony that he




                                - 6 -
would not have driven because he knew it was illegal and would

not want to incur a fine or jail sentence.

     To the extent that the proffered evidence arguably had some

relevance, the trial judge admitted the evidence that Valentine

had petitioned for restoration of his license and that a VASAP

evaluation had been ordered.   The evidence concerning the

correspondence with his attorney and the fact that a trial date

may have been set were collateral facts that did not tend to

prove that Valentine was not the driver.   The trial judge, who

heard the case without a jury, did not abuse his discretion in

limiting the scope of the evidence concerning Valentine's efforts

to have his driving privilege restored.
     Accordingly, we hold that the trial court did not abuse its

discretion by rejecting the evidence of collateral facts.    The

judgment of the trial court is affirmed.

                                                        Affirmed.




                               - 7 -
Benton, J., dissenting.


        "Evidence which bears upon and is pertinent to matters in

issue, and which tends to prove the offense, is relevant and

should be admitted."     Coe v. Commonwealth, 231 Va. 83, 87, 340

S.E.2d 820, 823 (1986).    "Evidence is relevant if it has any

logical tendency, however slight, to establish a fact at issue in

the case."     Ragland v. Commonwealth, 16 Va. App. 913, 918, 434

S.E.2d 675, 678 (1993).    Stated differently, every fact 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).    Thus, evidence "which has the

tendency to add force and effect to a party's defense is

admissible, unless excluded by a specific rule or policy

consideration."     Cash v. Commonwealth, 5 Va. App. 506, 510, 364

S.E.2d 769, 771 (1988).

        In his defense to the charge, Valentine denied that he was

the driver.    He testified that he had never met Officer Bucchi

before he appeared in court on the current charge.    Valentine

testified that he was at home watching television with his sister

at the time the officer stopped the truck.

        Valentine proved that the truck was registered to Rudolph

Hall.    When asked to explain the presence of the receipt,

Valentine testified that in his landscaping business he gave

receipts and obtained receipts with his name on them.    He also

testified that he knew Hall and that he had been a passenger in



                                 - 8 -
the truck on other occasions.

     Valentine's sister testified that Valentine arrived home at

9:00 p.m. on December 13 and watched television with her until

2:00 a.m.   She also testified that Valentine and his brother are

similar in their appearance.

     When the trial judge sustained the Commonwealth's relevance

objection, the trial judge denied Valentine the right to present

evidence in his defense detailing his motive not to drive.

Valentine's counsel made an offer of proof of the relevance of

the excluded evidence.   After the offer of proof, the

Commonwealth's attorney stated:
          Judge, the only possible relevance that I can
          see, is I suppose if counsel is trying to say
          he wouldn't have done anything to jeopardize
          his ability to get his license back, then
          . . . then, I will withdraw my objection, but
          if that's the case, then I think I'm
          permitted to go into the substance of his
          prior convictions, because that certainly
          jeopardized his ability to get his driving
          status reinstated.


Valentine's counsel agreed that the purpose of the proffered

evidence was to show why Valentine would not risk driving.

However, the trial judge ruled that the evidence was "absolutely

irrelevant as far as . . . the issues in here are concerned."

     The trial judge's ruling was erroneous as a matter of law.

The trial judge took judicial notice of the order that the trial

judge entered when Valentine's counsel was in the process of

seeking to have Valentine's license restored and was "willing to

consider that [Valentine] filed for restoration."   However, the



                                - 9 -
trial judge said "that's absolutely irrelevant as far as . . .

the issues in here are concerned."    The clear inference to be

drawn from the trial judge's unambiguous comment is that the

trial judge might have considered the proffered evidence to show

that Valentine drove believing his efforts at seeking judicial

restoration of his license justified his conduct.

     The evidence that was rejected would have tended to prove an

element of Valentine's defense.   Valentine denied that he was the

driver of the truck and offered the evidence to establish that he

had a motive to refrain from driving.   Motive or lack of motive

is often a relevant issue in a criminal prosecution.     See

Robinson v. Commonwealth, 228 Va. 554, 557, 322 S.E.2d 841, 843

(1984); Inge v. Commonwealth, 217 Va. 360, 363, 228 S.E.2d 563,

566 (1976); Williams v. Commonwealth, 208 Va. 724, 730, 160

S.E.2d 781, 785 (1968); Enoch v. Commonwealth, 141 Va. 411, 437,

126 S.E. 222, 230 (1925).
          "Proof of motive does not establish guilt,
          nor want of it establish innocence; but while
          such proof is not a necessity, it is of great
          importance, and the absence of motive is a
          factor for the consideration of the jury, but
          only as bearing on the question whether or
          not the crime was committed by the accused."

Ferrell v. Commonwealth, 177 Va. 861, 874, 14 S.E.2d 293, 298

(1941) (citation omitted).

     I disagree with the majority's conclusion that this is

"evidence of collateral facts."
             A fact is wholly collateral to the main
          issue if the fact cannot be used in evidence
          for any purpose other than for contradiction



                             - 10 -
          . . . . Conversely, if the evidence tends,
          even slightly, to throw light upon the main
          fact in issue, it is not collateral, but
          probative. Every fact, however remote or
          insignificant, that tends to establish the
          probability or improbability of a fact in
          issue, is admissible.


Seilheimer v. Melville, 224 Va. 323, 327, 295 S.E.2d 896, 898

(1982) (citations omitted).   Evidence that tends to establish

motive is not collateral or secondary evidence.    See Banovitch v.

Commonwealth, 196 Va. 210, 221, 83 S.E.2d 369, 374 (1954).

Certainly, evidence of motive when offered in support of the

theory of defense is not a collateral fact.    See Compton v.

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

example, "[t]he absence of a motive . . . [sometimes] points to

innocence rather than guilt."    Van Dyke v. Commonwealth, 196 Va.

1039, 1050, 86 S.E.2d 848, 853 (1955).   In this case, the

evidence of motivation was a circumstantial factor that tended to

support Valentine's testimony that he was not the driver.

     The following principles are well established in Virginia:
          "'[W]here the proper determination of a fact
          depends upon circumstantial evidence, the
          safe, practical rule to follow is that in no
          case is evidence to be excluded of facts or
          circumstances connected with the principal
          transaction, from which an inference can be
          reasonably drawn as to the truth of a
          disputed fact.['"]

             "'The modern doctrine in this connection
          is extremely liberal in the admission of any
          circumstance which may throw light upon the
          matter being investigated, and while a single
          circumstance, standing alone, may appear to
          be entirely immaterial or irrelevant, it
          frequently happens that the combined force of
          many concurrent and related circumstances,


                                - 11 -
           each insufficient in itself, may lead a
           reasonable mind irresistibly to a
           conclusion.'"


Peoples v. Commonwealth, 147 Va. 692, 704, 137 S.E. 603, 606

(1927) (citations omitted).

     At trial, there was an evidentiary dispute whether Valentine

was the driver.   Valentine testified in his own defense and

denied driving.   Thus, he placed his credibility as a witness

into issue.   The trial judge's resolution of Valentine's

credibility vis-a-vis the officer's credibility "was paramount in

determining the ultimate issue of guilt or innocence."
Evans-Smith v. Commonwealth, 5 Va. App. 188, 210, 361 S.E.2d 436,

448 (1987).   The officer made the connection between the driver

who ran away and Valentine through a receipt he found on the

ground.   The officer's suspicion that the driver dropped the

receipt from his wallet led the officer to examine a photograph

of Valentine.   Valentine offered in evidence a photograph to show

that he and one of his brothers are similar in appearance.     If

the trial judge had not barred the proffered evidence and

understood its purpose, he would have had additional facts which

he could have analyzed and weighed in determining whether

Valentine was more credible.

     The evidence tending to support Valentine's denial,

including his positive motive to abide by the law, was relevant

to show he was innocent of the crime.   Therefore, the evidence of

Valentine's lack of motive to drive illegally was relevant



                               - 12 -
because it bore upon the issue of whether Valentine drove the

vehicle.    That evidence was not collateral and was improperly

excluded.

     For these reasons, I dissent.      I would reverse the

conviction and remand for a new trial.




                               - 13 -
