                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia


ANDRE TYREE BATTLE
                                               OPINION BY
v.   Record No. 0597-96-2              JUDGE JAMES W. BENTON, JR.
                                             MARCH 25, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge
           D. Gregory Carr (Cary B. Bowen; Bowen &
           Bowen, P.C., on brief), for appellant.

           Leah A. Darron, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      A jury convicted Andre Tyree Battle of second degree murder

but acquitted him of use of a firearm in the commission of a

felony.   Battle contends that the conviction should be reversed

because the trial judge erroneously admitted evidence of a

shooting incident that involved Battle and the victim two nights

before the killing.    We affirm the conviction.

                                  I.

      Battle was indicted on charges of first degree murder of

Otis Patillo and use of a firearm in the commission of murder.

Before trial, the Commonwealth filed a motion in limine seeking

the judge's ruling on the admissibility of evidence regarding

events that occurred two days before the killing.     At a pretrial

hearing on the motion, Patillo's niece testified that at 3:00

a.m. on April 27, 1995, while she was watching television with
Patillo at his residence on Raven Street, someone knocked on the

door.    When Patillo went to the door and asked who was there, the

person said, in what she believed to be a disguised voice, "it's

Fonz."    The niece thought the voice did not sound like Fonz.    She

asked Patillo not to open the door but he did so.    The niece

observed Battle and Jason Black standing outside the unopened

screen door.    The niece also testified that a brief conversation

occurred in which Battle and Black told Patillo to let them in.

She saw their faces and recognized their voices before Patillo

slammed shut the inner door.    She testified that as soon as

Patillo shut the door, "they started shooting" and bullets came

into the house.    She and Patillo immediately contacted the police

and gave the investigating officer the names of Battle and Black.
        At the conclusion of the proffered testimony, the trial

judge ruled that he would allow the evidence if the Commonwealth

established a proper purpose for the evidence when it was offered

at trial.    The trial judge also indicated that he would give the

jury a cautionary instruction and alerted Battle's attorney to be

prepared to offer such an instruction.    The Commonwealth's

attorney indicated that he would offer the evidence to prove

Battle's premeditation and intent to kill.

        At the ensuing jury trial, Sonia Annatte Anderson testified

that on April 29 in the early morning, she was standing on Raven

Street with a friend when she saw Shawn Spires sitting with

Patillo on a porch.    She also saw two other men standing on the




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street close to the front of the porch.      Both of the men had

guns.    Anderson testified that she heard six or more gunshots and

that she saw fire coming from both guns.

        Anderson testified that the two men with guns ran toward her

and came within six to eight feet of her.      She testified that she

was standing near a streetlight and identified the men as Battle

and Black as they approached.    She also testified that she knew

both men and was certain that one of the men was Battle.
        Anderson further testified that she had attended a party

earlier that same night and had consumed one alcoholic beverage.

She saw Battle and Black at the party.       Anderson testified that

"[y]ou hardly ever s[aw] one without the other."      At the party,

Battle was wearing light colored clothes, but, when he passed her

after the shooting, he was wearing dark colored clothes.

Anderson testified that Battle might have been wearing a hood or

a hat at the time of the shooting.       She testified, however, that

his face was not covered.

        Anderson further testified that after Battle and Black ran

by her on Raven Street, they drove away in a gold-colored car.

After the car left, Anderson went to the porch where the shots

had been fired.    She saw Patillo on the ground.

        At approximately 12:50 a.m., police officers responded to

Raven Street and found Patillo dead on the street.      He had been

shot seven times.    An officer found four cartridge casings that

had been ejected from a gun.    Battle's attorney stipulated that




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the casings the police found at the scene came from the gun that

Black had in his possession several days later.   The gun was

capable of holding fifteen cartridges and contained only three

cartridges when it was taken from Black.

     Patillo's niece testified for the Commonwealth about the

events that occurred at Patillo's residence two days before the

murder.   Her testimony at trial was materially the same as her

testimony at the pretrial hearing.
     At the end of the Commonwealth's case, the judge denied

Battle's motion to strike.   Battle offered no additional

evidence.   Before closing arguments, the judge instructed the

jury, in relevant part, as follows:
             Evidence that shows or tends to show that
          a defendant committed . . . another offense
          is not admissible to show that the defendant
          committed the crime charged. However, you
          may consider such evidence as evidence of one
          the defendant's intent, the defendant's
          identity, the defendant's malice or the
          defendant's premeditation.


The jury convicted Battle of second degree murder but acquitted

him of use of a firearm in the commission of murder.

                                II.

     Battle argues that the trial judge erred in admitting the

niece's testimony regarding the shooting that occurred two days

before the murder.   The Commonwealth contends that the trial

judge properly admitted the evidence to show Battle's intent,

identity, malice, and premeditation.

     "To be admissible, evidence must relate and be confined to



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matters in issue, and it must tend to prove or disprove these

matters or be pertinent to them."       Boggs v. Commonwealth, 199 Va.

478, 486, 100 S.E.2d 766, 772 (1957).
             Evidence of other crimes or bad acts is
          inadmissible if it is offered merely to show
          that the defendant is likely to have
          committed the crime charged. However, such
          evidence is admissible if it tends to prove
          any element of the offense charged, even
          though it also tends to show that the
          defendant is guilty of another crime.


Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127

(citations omitted), cert. denied, ___ U.S. ___, 117 S. Ct. 222,
136 L. Ed. 2d 154 (1996).    "Such evidence is permissible in cases

where the motive, intent or knowledge of the [defendant] is

involved."   Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176

S.E.2d 802, 805 (1970).

     At trial, Anderson testified that before Patillo was killed

Battle and Black were both armed and standing near the porch

where Patillo was sitting.   She saw them shoot and kill Patillo.

Anderson did not hear or see anything that might have

precipitated the shooting.   In this first degree murder

prosecution, the Commonwealth was required to prove both intent

and premeditation.   Rhodes v. Commonwealth, 238 Va. 480, 485, 384

S.E.2d 95, 98 (1989).   Those issues were contested.

     The niece's testimony tended to prove that Battle and Black

harbored an animus against Patillo two days before the killing.

Her testimony established that Battle and Black tried to enter

Patillo's residence using a ruse and that shots were fired into



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Patillo's residence immediately after he slammed his door shut.

The trial judge correctly found that if the jury believed the

niece's testimony, the jury could infer from Battle's conduct on

that occasion that he harbored malice toward Patillo and had

formed the intent to kill Patillo at least two days before the

killing.   We hold that the evidence was highly probative of

Battle's premeditation and intent in killing Patillo.

     Battle also argues that because the niece's testimony did

not directly establish that Battle committed or assisted in the

prior crime, the evidence had little probative value.    Battle

asserts that the trial judge erred by admitting the evidence

because its probative value was outweighed by its prejudicial

effect.    We disagree.
     "Ultimately, the question whether to admit evidence of other

crimes involves the same considerations as any other

circumstantial evidence."    Spencer v. Commonwealth, 240 Va. 78,

90, 393 S.E.2d 609, 616 (1990).   The trial judge's obligation was

to determine the admissibility of that evidence by weighing the

probative value of the evidence against its possible prejudicial

effect.    See id. at 90, 393 S.E.2d at 617.   "[W]hether the

probative value of the evidence of other crimes outweighs any

prejudice to the defendant is left largely within the sound

discretion of the trial judge."    Berry v. Commonwealth, 22 Va.

App. 209, 213, 468 S.E.2d 685, 687 (1996).

     The evidence proved that Battle and Black sought to enter



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Patillo's residence by a ruse and that when Patillo slammed his

door shut shots were fired into his residence.   The evidence also

proved that, two days later, Battle and Black both had guns and

shot onto the porch when Patillo was killed.   The two incidents

were closely related in time, both concerned gunfire directed at

Patillo, and both involved Battle and Black.   The record

therefore establishes, contrary to Battle's argument, that the

probative value of the evidence of the shooting on April 27

outweighed its prejudicial effect.
     Furthermore, the trial judge's cautionary instruction

informed the jury that the evidence of the earlier event could

not be used to establish a propensity to commit crime.     In view

of the similarity of circumstances, the clear identification of

Battle in both instances, and the cautionary instruction, we

cannot say that the record establishes that the trial judge

abused his discretion in ruling that the probative value of the

evidence outweighed any prejudice to Battle.

     Accordingly, we affirm the conviction.

                                               Affirmed.




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