                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


BILLY JOE WALKER
                                          MEMORANDUM OPINION * BY
v.   Record No. 2455-99-1              JUDGE JEAN HARRISON CLEMENTS
                                             OCTOBER 31, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                    Wilford Taylor, Jr., Judge

          Richard S. Yarow (Richard S. Yarow, Ltd., on
          brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Billy Joe Walker was convicted in a jury trial of second

degree murder and use of a firearm in the commission of a murder.

On appeal, he contends the trial court erred (1) in allowing

witness testimony concerning his prior bad acts to be introduced

to the jury and (2) in refusing to instruct the jury on the

elements of voluntary manslaughter.   We disagree and affirm the

convictions.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
value, this opinion recites only those facts necessary to a

disposition of this appeal.

                    A.   PRIOR BAD ACTS TESTIMONY

     Walker asserts that the evidence introduced at trial that he

had previously assaulted his father and brandished a gun at him

was inadmissible.   While conceding that such testimony might fall

under the exception allowing the introduction of evidence of an

accused's prior bad acts to negate the possibility of accident,

appellant argues that the instant evidence was too remote and not

probative of whether the shooting was an accident.    We disagree.

     The trial court ruled admissible evidence presented by the

Commonwealth of two prior incidents involving Walker and his

father, both of which were witnessed by neighbors.    The first

incident took place one year prior to the homicide.   After an

exchange of words between Walker and his father in the front yard,

Walker kicked his father in the chest, breaking three of his ribs.

The second incident occurred approximately one month prior to the

shooting.   After yelling from the front porch at his parents who

were standing near the street, Walker went into the house, came

out with a gun, and, while walking back and forth on the porch,

asked them repeatedly, "Is this what you want?"

     Generally, evidence of other crimes or bad acts is

inadmissible to prove the accused is guilty of the crime charged.

See Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491

(1998).   Such evidence is inadmissible because "it may confuse the
                                - 2 -
issues being tried and cause undue prejudice to the defendant."

Id.   "However, 'where the motive, intent, or knowledge of the

accused is at issue, evidence of other offenses is admissible if

it shows the conduct or attitude of the accused toward his victim,

establishes the relationship between the parties, or negates the

possibility of accident or mistake.'"   Blaylock v. Commonwealth,

26 Va. App. 579, 588-89, 496 S.E.2d 97, 101-02 (1998) (quoting

Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824

(1981)).   Nonetheless, evidence of prior bad acts will not be

admitted if its prejudicial impact outweighs its probative value,

a determination which is within the trial court's discretion and

one that will not be overturned absent an abuse of discretion.

See Robbins v. Commonwealth, 31 Va. App. 218, 222-23, 522 S.E.2d

394, 396 (1999).

      In this case, Walker's intent at the time of the shooting was

clearly in dispute.   It was, in fact, the most important issue in

controversy before the jury.   Appellant's theory of the case was

that the shooting was unintentional, an accident.   Consequently,

the Commonwealth had the burden to prove that the shooting was not

accidental.   The evidence of prior bad acts was therefore relevant

to show that Walker deliberately shot his father.   To that end,

the evidence demonstrated Walker's ill feelings and hostility

toward his father and established that their relationship was a

violent one marked by assaults and threats by Walker against his

father.    Thus, the fact that Walker had previously assaulted his
                                 - 3 -
father and brandished a weapon at him served to negate the

argument that the shooting was an accident.   We find, therefore,

that the evidence of Walker's prior conduct was probative as to

the issue of Walker's intent at the time of the shooting and that

the trial court did not abuse its discretion in deciding that the

probative value of that evidence outweighed its prejudicial

impact. 1

     As to Walker's argument that the challenged evidence was too

remote in time from the crime charged and should not have been

admitted, our review of the record convinces us that this

contention is without merit.   "[T]he trial court may consider

remoteness as one of the factors in determining evidentiary

relevance of prior bad acts evidence, but it should not withhold

such evidence solely on the basis of remoteness unless the expanse

of time has truly obliterated all probative value."   Lafon v.

Commonwealth, 17 Va. App. 411, 419, 438 S.E.2d 279, 284 (1993).

"This determination is committed to the sound discretion of the

trial court."   Id.

     Here, as the trial judge pointed out, the challenged evidence

involved not strangers but family members whose relationship was


     1
       We note as an aside that any prejudice inherent in the
testimony concerning Walker's prior bad acts was diminished and
minimized by the trial court's instruction that the jury was to
consider such testimony "only as evidence of the defendant's
intent and as evidence of the absence of mistake or accident on
the part of the defendant in connection with the offense for
which he is on trial and for no other purpose."

                               - 4 -
ongoing.   Given that familial relationship, neither expanse of

time, one year or one month, respectively, was so long as to

obliterate its relevance to the issue of whether the shooting was

an accident.      We find, therefore, that the trial court did not

abuse its discretion in refusing to preclude the challenged

testimony on the basis of remoteness.

     Hence, the trial court's ruling admitting the evidence that

Walker had previously assaulted his father and brandished a gun at

him will not be overturned.

                  B.   VOLUNTARY MANSLAUGHTER INSTRUCTION

     Walker further asserts on appeal that the trial court erred

in denying his request for a jury instruction on voluntary

manslaughter. 2    He maintains that the evidence adduced at trial

supported such an instruction and that the jury should have

therefore been given the opportunity to consider whether he killed

his father in the heat of passion.

     It is well settled that "jury instructions are proper only if

supported by the evidence, and that more than a scintilla of

evidence is necessary to support a lesser-included offense

instruction requested by the defendant."      Commonwealth v. Donkor,

256 Va. 443, 445, 507 S.E.2d 75, 76 (1998).      "To reduce a


     2
       Although appellant asked for instructions on both
voluntary and involuntary manslaughter at trial, he addressed
solely the issue of voluntary manslaughter on brief and in oral
argument. We will thusly limit our consideration to the issue
of voluntary manslaughter. See Quintana v. Commonwealth, 224
Va. 127, 134 n.1, 295 S.E.2d 643, 645 n.1 (1982).
                              - 5 -
homicide from murder to voluntary manslaughter, the killing must

have been committed in the heat of passion and upon reasonable

provocation."   Barrett v. Commonwealth, 231 Va. 102, 105-06, 341

S.E.2d 190, 192 (1986).   Thus, to grant Walker's requested

instruction on the lesser offense of voluntary manslaughter, the

record, viewed in the light most favorable to the accused's theory

of the case, see Lea v. Commonwealth, 16 Va. App. 300, 305, 429

S.E.2d 477, 480 (1993), must contain more than a scintilla of

evidence that appellant killed his father in the heat of passion

and upon reasonable provocation.   "Heat of passion is determined

by the nature and degree of the provocation and may be founded

upon rage, fear, or a combination of both."   Barrett, 231 Va. at

106, 341 S.E.2d at 192 (citation omitted).

     Having elected not to testify at trial, Walker relies solely

on the testimony of his mother, Mrs. Walker, to show that the

killing may have been manslaughter.   Specifically, he contends

that Mrs. Walker's testimony that appellant and his father were

engaged in an argument that led to a physical altercation, that

her husband was so enraged during the confrontation that she was

unable to stop the fight, and that appellant appeared to be upset

when his father was hitting him was sufficient to support a

voluntary manslaughter instruction.   We do not agree.

     None of the evidence cited by Walker supports a finding that

Walker was upset at the time of the killing or that the killing

occurred upon reasonable provocation.   Walker and his father did
                               - 6 -
indeed engage in a heated and violent physical altercation during

which Walker's father hit him with a metal stepladder and Walker

hit his father with a piano leg.   That altercation, however, had

ended, according to Mrs. Walker's testimony, by the time Walker

retrieved the gun from another room.   When Walker came back into

the living room with the gun, Walker's father had dropped the

ladder and walked to the couch on the other side of the room.

Just before the shooting, Walker's father, who was standing by the

couch with nothing in his hands, the confrontation over, said to

Walker, "I love you.   Put the gun down."

     Furthermore, the evidence that Walker's father was enraged

during the fight is immaterial to a determination of Walker's

state of mind at the time of the shooting.   Similarly, the fact

that Walker was upset when his father was hitting him with the

ladder does not indicate that he was upset at the time of the

shooting.   When asked if Walker appeared to be upset by the fight

with his father, Mrs. Walker responded, "No.   He didn't seem to be

upset."   When asked how long Walker was out of the living room

getting the gun, Mrs. Walker stated that she did not know. 3


     3
       In setting forth the facts of this case, appellant
contends that Mrs. Walker's testimony regarding the period of
time between when Walker left the living room after the fight
and returned with the gun indicates that he was gone for just a
short time. Our reading of Mrs. Walker's testimony leads us to
a different understanding. When asked how long Walker was gone
before reappearing with the gun, Mrs. Walker stated, "I don't
know. I can't recall." When asked if it could have been ten
minutes, five minutes, she said, "It might have been a second, I
mean, I don't know. I can't—" Even viewed in the light most
                              - 7 -
     According to each of the various versions of the events of

that night that Walker provided to the police, including his

written statement, Walker went to his room after the fight and

changed his clothes.   He was in his room for ten minutes before

returning to the living room.   Plainly, the evidence does not show

that Walker was enraged, afraid, upset or otherwise in the heat of

passion when he shot his father.

     Neither does the evidence show that the provocation claimed

by Walker was reasonable.   Walker indicated in his statement to

the police that he got the gun because his father would not let

him leave the house.   The deceased, however, was a 72-year-old man

who weighed only 130 pounds, was suffering from Parkinson's

Disease, and was unarmed at the time.   Appellant, on the other

hand, was 18 years of age, 170 pounds in weight, and apparently

healthy.   It is not reasonable that Walker would need to use

deadly force to protect himself from his father in leaving the




favorable to appellant, this testimony, while allowing for the
possibility that Walker might have been gone for a short time, is
not evidence that he was out of the room for only a short time.
It also allows for the possibility that Walker was out of the
living room for a lengthier period of time. Mrs. Walker did not
know. At most, it is not more than a mere scintilla of evidence
supporting the submission of the requested instruction to the
jury. See Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430
S.E.2d 563, 565 (1993) (holding that "the weight of the credible
evidence that will amount to more than a mere scintilla of
evidence is a matter to be resolved on a case-by-case basis" by
assessing the evidence in support of a proposition against the
"other credible evidence that negates" it).

                                - 8 -
house.   Thus, we find no evidence in the record that Walker killed

his father upon reasonable provocation.

     We hold, therefore, that the trial court properly refused

appellant's instruction for voluntary manslaughter because it was

not supported by more than a scintilla of evidence.

     Accordingly, we affirm appellant's convictions.

                                                         Affirmed.




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