                   COURT OF APPEALS OF VIRGINIA



Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


SHARELLE GRACE DUKE MERRITT
                                          MEMORANDUM OPINION * BY
v.        Record No. 1524-97-1            JUDGE JOSEPH E. BAKER
                                              JUNE 30, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                    William L. Wellons, Judge
          Joseph M. Teefey, Jr., Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          John K. Byrum, Jr., Assistant Attorney
          General, on brief), for appellee.



     Sharelle Grace Duke Merritt (appellant) appeals from her

jury trial convictions, approved by the Mecklenburg County

Circuit Court (trial court), for second-degree murder and use of

a firearm in the commission of murder.   She contends the trial

court erroneously held the evidence sufficient to support the

jury's finding that she shot the victim intentionally rather than

accidentally.   In addition, she claims the trial court wrongfully

instructed the jury that it could consider a witness' prior

consistent statements as substantive evidence.    For the reasons

that follow, we affirm appellant's convictions.

     The record shows that on December 20, 1995, appellant shot
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Roy Lee Gregory (victim) at his home in Mecklenburg County.

Marcus Coles, who was playing cards with appellant and victim at

victim's kitchen table, witnessed some of the events.    Appellant

and victim were drinking and argued over whether victim was

appellant's natural father.   According to Coles, at about

4:00 p.m., appellant retrieved a .410 single-barrel shotgun and

one shell from the closet.    She sat down on the couch and

repeatedly loaded and unloaded the shell while saying, "I will

shoot him."    Appellant chambered the bullet again, closed the

barrel, and pulled the hammer back.     Coles, fearing for his

safety, moved away from the table but saw appellant point the gun

in victim's direction.   He then heard the gun discharge and

appellant exclaim, "Oh my God."   Coles saw victim bleeding from

the nose, mouth and left side of his head.    Coles and appellant

both fled.
     Sheriff's Deputies Wilson and Claiborne responded to the

scene, where they found victim bleeding.    Appellant returned to

the scene a few minutes later and said, "It was an accident and I

didn't mean to do it."   Police retrieved the weapon, which Coles

had discarded away from the scene, and found it to be

operational.

     Victim was hospitalized and died about a month later from a

series of infections resulting from the wound.    An autopsy showed

a seven-inch scar on the left side of victim's head from surgery

on the shotgun wound.    Still present in victim's head at the time




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of autopsy were three shotgun pellets.

     Appellant's firearms expert, James Pickelman, testified

victim was shot with number six lead shot which would come from a

shell containing one-hundred-fifty-five pellets per shell.    Such

a shot would create a circular pattern, with some "fliers"

deviating from the pattern, the width of which would grow as the

distance from the target increased.

     Investigator Wesley Simmons, who examined the shot pattern

on the wall behind victim, found several "cast-off" shots

separated from the main circular shot pattern.
     At trial, appellant attempted to impeach Coles with portions

of his statement to police and his testimony at appellant's

preliminary hearing.   Over appellant's hearsay objection, on

re-direct, the Commonwealth sought to rehabilitate Coles with

previous consistent statements.   The Court overruled the

objection and admitted the prior consistent statements for that

limited purpose.   Appellant did not ask the court to instruct the

jury that it could consider the prior statements only for such

limited purpose and not as substantive evidence.

     After the jury had retired to consider its verdict, it

returned to the courtroom and made the following inquiries:
            THE COURT:   Ladies and gentlemen, I
          understand that you have a question to be
          addressed to the Court. Who would like to
          address the question?

            A JUROR:     We would -- was the
          preliminary hearing entered in as evidence?

            THE COURT:    Only to the extent that the



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          statements were read to you in open court.

            A JUROR:      Okay.

            THE COURT:   The transcript itself was not
          admitted in evidence.

            A JUROR:      So, we cannot go over that?

            THE COURT:   You will have to rely on the
          evidence that's been presented to you through
          the testimony which was presented.

            A JUROR:    Okay.      No further questions
          then. That's all.

The trial court did not consult counsel before making these

statements to the jury.   However, appellant raised no objection

contemporaneously or during the remainder of the jury's

deliberations.

     More than two months after trial, appellant moved for a

mistrial, asserting the trial court erroneously instructed the

jury it could consider preliminary hearing testimony as

substantive evidence.   The court overruled the motion.

           Sufficiency of the Evidence to Prove Intent
     Appellant contends the evidence was insufficient to prove

she acted with the requisite intent to commit second-degree

murder.

     In reviewing a challenge to the sufficiency of the evidence,

we view the evidence and any reasonable inferences in the light

most favorable to the Commonwealth.       See, e.g., Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

It is within the province of the jury to judge the credibility of



                                  - 4 -
the witnesses, see, e.g., Mullis v. Commonwealth, 3 Va. App. 564,

571, 351 S.E.2d 919, 923 (1987), and "[t]he jury's verdict will

not be disturbed on appeal unless it is plainly wrong or without

evidence to support it."    Traverso, 6 Va. App. at 176, 366 S.E.2d

at 721.    Whether appellant "acted with the requisite mental state

is an essential question for the jury."    Darnell v. Commonwealth,

6 Va. App. 485, 492, 370 S.E.2d 717, 720-21 (1988).   "The fact

finder may infer that a person intends the immediate, direct, and

necessary consequences of his voluntary acts."    Bell v.

Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991).

     Second-degree murder does not require proof of a specific

intent to kill.    See Rhodes v. Commonwealth, 238 Va. 480, 486,

384 S.E.2d 95, 98 (1989).   It requires proof only of "'a

malicious purpose to do the deceased a serious personal injury or

hurt.'"    Id. (quoting Dock's Case, 62 Va. (21 Gratt.) 909, 913

(1872)).   Intent or purpose "may, and most often must, be proven

by circumstantial evidence," Fleming v. Commonwealth, 13 Va. App.

349, 353, 412 S.E.2d 180, 183 (1991), including the statements

and conduct of the accused.    See Nobles v. Commonwealth, 218 Va.

548, 551, 238 S.E.2d 808, 810 (1977).

     Here, Commonwealth's witness Coles testified that, during an

argument between appellant and victim, appellant retrieved a

shotgun and shell from a nearby closet and sat on the couch while

she repeatedly loaded and unloaded the weapon.   She was pointing

the gun in victim's direction and saying, "I will shoot him."




                                - 5 -
Appellant chambered the bullet again, closed the barrel, pulled

back the hammer, and discharged the gun, shooting appellant in

the head.

     Appellant contends that Coles' testimony did not prove

appellant aimed the gun or purposefully pulled the trigger and

that the forensic evidence of the shot pattern on the kitchen

wall and cabinets proved, in fact, she did not aim the gun.       We

disagree.
     The jury heard Coles' testimony and appellant's attempts at

impeachment and nevertheless accepted his testimony that

appellant pointed the shotgun at victim.   Evidence that the gun

was in good operating condition after the shooting belied

appellant's claim that the gun discharged accidentally.     See

Compton v. Commonwealth, 219 Va. 716, 730-31, 250 S.E.2d 749, 758

(1979).   In addition, the shot-pattern evidence did not prove

appellant lacked intent.   Although multiple shotgun pellets hit

the cabinet and walls, enough pellets hit victim's head to

require surgery leaving a seven-inch scar.   The evidence is

sufficient to support the finding that appellant intended to

shoot victim, and the jury was entitled to conclude that the only

reasonable hypothesis flowing from all the evidence, viewed in

the light most favorable to the Commonwealth, was that appellant

acted with the requisite intent.   See Cody v. Commonwealth,

180 Va. 449, 454-55, 23 S.E.2d 122, 124 (1942) (upholding

first-degree murder conviction of accused who argued with his



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wife over bringing gun into house, said anyone who crossed the

threshold to the bedroom "[was] going to get it," and shot his

wife when she approached that threshold, despite conflicting

evidence of whether he actually aimed gun).

                         Jury's Inquiries

     Appellant asserts the trial court's responses to the jury's

inquiries constituted an instruction to the jury that Coles'

prior inconsistent and consistent testimony could be considered

as "substantive evidence."   We disagree.   However, even if we

agreed with appellant's assertion, we will not notice the issue

on appeal because appellant failed to request a limiting

instruction or timely to assign the trial court's responses as

error.   See Smith v. Commonwealth, 217 Va. 9, 9 n.*, 225 S.E.2d

194, 194 n.* (1976); Rule 5A:18.   For the first time, more than

two months after the trial had been concluded with his

conviction, using the foregoing assertion as a ground, appellant

moved for a mistrial and here assigns as error the trial court's

denial of that motion.

     "Generally, evidence admissible for one purpose, but

inadmissible for another, should be accompanied by a limiting

instruction to the jury."    Hanson v. Commonwealth, 14 Va. App.

173, 183, 416 S.E.2d 14, 20 (1992).     However, a party entitled to

a limiting instruction "waive[s] [her] right [to such an

instruction] by not requesting it."     Crider v. Commonwealth, 206

Va. 574, 578, 145 S.E.2d 222, 225 (1965).    The Virginia Supreme



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Court repeatedly has held that an accused who "wishes to take

advantage on appeal of some incident he regards as objectionable

enough to warrant a mistrial . . . must make his motion timely or

else be deemed to have waived his objection.    Making a timely

motion for mistrial means making the motion 'when the

objectionable words were spoken.'"     Yeatts v. Commonwealth, 242

Va. 121, 137, 410 S.E.2d 254, 264 (1991) (quoting Reid v.

Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 781 (1977))

(citations omitted).
     Appellant relies on Mason v. Commonwealth, 7 Va. App. 339,

373 S.E.2d 603 (1988), to justify her failure to make timely

objections.   Although we excused the failure of the accused to

object to the trial court's response to a jury question in Mason,

the response of the trial court in that case provided the jury

with an incomplete definition of an essential element of the

offense.   See id. at 345-47, 373 S.E.2d at 606-07; see also

Jimenez v. Commonwealth, 241 Va. 244, 245-46, 250, 402 S.E.2d

678, 678, 681 (1991) (holding that trial court has "affirmative

duty properly to instruct a jury" on principles of law "vital" to

case and that failure of accused to object does not bar

consideration of issue on appeal); Johnson v. Commonwealth, 20
Va. App. 547, 458 S.E.2d 599 (1995) (en banc) (applying Jimenez

ruling to reverse conviction where trial court failed, in

response to question from jury, to fill "obvious void in

instructions," thereby permitting jury to convict accused of a




                               - 8 -
nonexistent offense).   In this case, by contrast, appellant makes

no claim that the jury was improperly instructed on an element of

the offense.   Rather, her objection relates only to a rule of

evidence.   Under these facts, we find no reason to excuse her

failure timely to object or move for mistrial.

     For these reasons, we affirm appellant's convictions.

                                                         Affirmed.




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