                     COURT OF APPEALS OF VIRGINIA

Present: Judge Benton, Senior * Judge Cole and
         Retired Judge Trabue
Argued at Richmond, Virginia

DANIEL THOMAS COX

v.   Record No. 2177-93-2                  MEMORANDUM OPINION** BY
                                       JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA                        MAY 9, 1995


               FROM THE CIRCUIT COURT OF HANOVER COUNTY
                      Richard H. C. Taylor, Judge

          J. Overton Harris (Hugh S. Campbell; Campbell,
     Campbell, Herbert & Harris, P.C., on brief), for
     appellant.
          Kathleen B. Martin, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
     for appellee.



         On appeal from his convictions of first degree murder and

use of a firearm in the commission of a felony, Daniel Thomas Cox

contends that the trial judge erred in admitting evidence of a

prior bad act.    We hold that the evidence was properly admitted.

 Therefore, we affirm.

     On March 19, 1993, the appellant shot and killed his wife.

At a pretrial hearing on his motion in limine, the appellant

contested the Commonwealth's presentation of evidence of the

appellant's prior bad acts involving incidents of previous

marital difficulties between the appellant and the victim.     The

     *
      Retired Judge Kenneth E. Trabue took part in the
consideration in this case by designation pursuant to Code
§ 17-116.01.
     **
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
trial judge overruled the motion, stating that the relationship

between the victim and the appellant was relevant evidence.

     At appellant's trial Erin Moran testified, over the

appellant's objection, that eighteen months before the murder she

and her companion spent an evening playing cards and other games

with the appellant and the victim.    Moran testified that the

victim and the appellant "exchanged cross words."    The appellant

then pushed the victim, causing her to hit her head on the corner

of the kitchen cabinet.   The appellant and the victim "scuffled"

until Moran and her companion ended the fight.
     As a general rule, evidence that shows or tends to show

crimes or other bad acts committed by the accused "is incompetent

and inadmissible for the purpose of showing the commission of the

particular crime charged."     Kirkpatrick v. Commonwealth, 211 Va.

269, 272, 176 S.E.2d 802, 805 (1970).    But the exceptions to the

general rule are as well established as the rule itself.     Morton

v. Commonwealth, 227 Va. 216, 222, 315 S.E.2d 224, 228, cert.
denied, 469 U.S. 862 (1984).

     In Sutphin v. Commonwealth, 1 Va. App. 241, 337 S.E.2d 897

(1985), this Court enumerated the most common issues and elements

for which evidence of prior crimes and bad acts are potentially

relevant:
            (1) to prove motive to commit the crime
            charged; (2) to establish guilty knowledge or
            to negate good faith; (3) to negate the
            possibility of mistake or accident; (4) to
            show the conduct and feeling of the accused
            toward his victim, or to establish their
            prior relations; (5) to prove opportunity;



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           (6) to prove identity of the accused as the
           one who committed the crime where the prior
           criminal acts are so distinctive as to
           indicate a modus operandi; or (7) to
           demonstrate a common scheme or plan where the
           other crime or crimes constitute a part of a
           general scheme of which the crime charged is
           a part.


Id. at 245-46, 337 S.E.2d at 899.

     Malice, motive, intent, and the relationship between the

accused and the victim are relevant matters for the consideration

of the jury in a murder trial.   The trial judge specifically

found that evidence of the prior relationship between the

appellant and the victim was relevant evidence and admitted the

evidence of the prior bad act for this purpose.   Thus, the

evidence was not admitted as tending to prove that the appellant

killed the victim, "but for the purpose of showing the relations

between the parties, their state of feeling and course of conduct

towards each other, and as reflecting light upon the motive and

intent with which the act was done."   O'Boyle v. Commonwealth,

100 Va. 785, 792, 40 S.E. 121, 123 (1901).   See also Smith v.
Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878, cert.

denied, 498 U.S. 881 (1990); Gibson v. Commonwealth, 216 Va. 412,

415-16, 219 S.E.2d 845, 848 (1975), cert. denied, 425 U.S. 994

(1976).   The evidence also tended to prove that the killing was

not accidental.

     Moreover, the probative value of this evidence was not

defeated by its remoteness in time from the crime charged.
          [T]he test is whether the evidence of prior
          character is "so distant in time as to be



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             void of real probative value in showing
             present character."

             . . . Once a nexus for relevancy of prior
             conduct or character has been established
             . . . the issue of remoteness concerns the
             weight of the evidence and the credibility of
             the witnesses, both of which are within the
             province of the jury.


Lafon v. Commonwealth, 17 Va. App. 411, 419, 438 S.E.2d 279, 284

(1993) (citations omitted).    In this case, eighteen months was

not sufficient to eradicate all probative value.       Further, the

trial judge correctly found that the fact that the incident

occurred about eighteen months before the murder related only to

the weight to be afforded the evidence, which was for the jury to

determine.     See O'Boyle, 100 Va. at 792, 40 S.E. at 123.

Therefore, the trial judge did not abuse his discretion in

admitting the evidence.

     For the reasons stated, the judgment of the trial court is

affirmed.


Affirmed.




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BENTON, J., dissenting.

        Daniel Cox did not deny that he fired the gun that

discharged the bullet that killed his wife.    His defense to the

murder indictment was that the bullet accidentally hit her.     The

physical evidence was consistent with Cox's defense.

        The Commonwealth's forensic expert testified that the bullet

fragment recovered from the body of Cox's wife was "consistent

with that bullet having struck something before it went into the

head."    The forensic expert also testified that the irregular

shaped entrance wound "confirms or . . . it supports the idea

that the bullet has struck something prior to hitting [the

body]."    She testified that it was possible that the bullet

struck a defect that she had examined in the kitchen floor,

deflected at an angle of ricochet, and hit Cox's wife in the

head.
        In Cox's defense, Cox presented evidence from his own

ballistic expert who similarly testified that the bullet had in

fact ricocheted before hitting Cox's wife.    The ballistic expert

also testified that the defect on the floor could have been the

point from which the bullet ricocheted.

        Despite the physical evidence, the Commonwealth argued that

evidence of an event of marital disharmony was relevant and

admissible to prove that the bullet did not accidentally enter

Cox's wife's head and cause her death.    The trial judge agreed

and allowed the Commonwealth to prove, over Cox's objection, that




                                   5
Cox and his wife "scuffled" more than eighteen months prior to

the death of Cox's wife.    I disagree with the majority's holding

that the evidence was admissible.

     As a general rule, evidence that an accused has committed

bad acts other than the offense for which the accused is being

tried is inadmissible.     Kirkpatrick v. Commonwealth, 211 Va. 269,

272, 176 S.E.2d 802, 805 (1970).       In addition, the following rule

is well established:
          Evidence which has no tendency to prove
          guilt, but only serves to prejudice an
          accused, should be excluded on the ground of
          lack of relevancy. For evidence to be
          admissible it must relate and be confined to
          the matters in issue and tend to prove an
          offense or be pertinent thereto. Evidence of
          collateral facts or those incapable of
          affording any reasonable presumption or
          inference on matters in issue, because too
          remote or irrelevant, cannot be accepted in
          evidence.

Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208

(1967).

     Evidence that proved Cox and his wife quarrelled and

scuffled while drinking and playing cards one year and six months

prior to the death of Cox's wife was not relevant to negate

accident or to prove any element at Cox's murder trial.      Other

than an exchange of cross words, nothing is known about the

nature or circumstances of that incident.      "The fact that he had

[pushed] her at some previous time without any evidence as to the

circumstances or the character or effect of it, furnishes no

proof that he willfully, deliberately and premeditatedly killed


                                   6
her on this occasion."   Williams v. Commonwealth, 203 Va. 837,

840, 127 S.E.2d 423, 425-26 (1962).      Furthermore, this prior

event did not involve a gun and was not so "strikingly similar[]"

as the events on the night of Cox's wife's death.       Lafon v.

Commonwealth, 17 Va. App. 411, 418, 438 S.E.2d 279, 284 (1993).

It bore no nexus to the incident for which Cox was being tried.

Nothing about the earlier event had any tendency to prove whether

the bullet from the gun was deliberately or accidentally

discharged.
     Moreover, even if one assumes that factual relevance had

been established, the trial judge was required to exclude

evidence of a prior bad act when "the expanse of time has truly

obliterated all probative value."       Id. at 419, 438 S.E.2d at 284.

Thus, to be admissible, the prior event must be "'sufficiently

connected in time and circumstances with the homicide as to be

likely to characterize'" Cox's conduct toward his wife in order

to be admissible.   Id. (citation omitted).      In this case, an

incident whereby a married couple "exchanged cross words" over

eighteen months prior to the death of one of the parties is

simply too remote in time to have any probative value regarding

the deliberate or accidental nature of the shooting.

     The evidence tended only to prove to the jury that Cox had a

"propensity [for violence and] tend[ed] to reverse his

presumption of innocence."   Lewis v. Commonwealth, 225 Va. 497,

502, 303 S.E.2d 890, 893 (1983).       "The only purpose it could



                                   7
serve, and the only effect it would have, was to prejudice [Cox]

in the minds of the jury."   Williams, 203 Va. at 840, 127 S.E.2d

at 426.

     I would hold, therefore, that the trial judge erred in

admitting the evidence.   Thus, I would reverse the conviction.




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