                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia


ANTONIO FRANCIS BUCK
                                          MEMORANDUM OPINION * BY
v.   Record No. 1806-98-2                JUDGE SAM W. COLEMAN III
                                             JANUARY 11, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     James B. Wilkinson, Judge

          Carolyn V. Grady (Epperly, Follis & Schork,
          P.C., on brief), for appellant.

          Michael T. Judge, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Antonio Francis Buck, the appellant, was convicted in a

jury trial of two counts of first-degree murder, in violation of

Code § 18.2-32, and two counts of use of a firearm during the

commission of a felony, in violation of Code § 18.2-53.1.    The

sole issue on appeal is whether the trial court erred by

admitting evidence of other crimes and prior bad acts.     For the

following reasons, we affirm the convictions.

                            BACKGROUND

     The Richmond Police Department received an emergency call

that a shooting had occurred at a residence on Calhoun Street.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Detectives were dispatched to Annette Morris' apartment.    Upon

arrival, the detectives found two homicide victims, Annette

Morris and Theresa Newton, lying on the floor next to the front

door.    Evidence indicated that the front door had been forcibly

entered.    The back door of the apartment was barricaded from the

inside with a chair.    The apartment was not in disarray, and

there was no evidence that Morris had been robbed.

        At trial, a forensic scientist testified that Newton had

been shot at point blank range and that Morris had been shot

twice at close range, approximately twenty-four inches from the

gun barrel.    All three bullets were fired from the same weapon.

The forensic scientist also testified that the weapon was most

likely a .38 caliber firearm.

        On the evening of the shooting, Morris' nine-year-old son,

Tyree Morris, was asleep upstairs.     Tyree was awakened suddenly

and heard his mother, Annette Morris, and Buck arguing.    Tyree

had known Buck for almost a year while Buck was dating Tyree's

mother.    Tyree heard his mother scream "don't shoot" a number of

times, and then he heard a gunshot and someone fall against a

chair.    Soon after hearing the gunshot, Tyree went to the pay

phone across the street and called 9-1-1.

        At trial, the Commonwealth introduced, over the defendant's

objection, several arrest warrants which had been sworn out

against Buck by Morris, charging him with assault and battery of


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Morris, trespass, and pointing and brandishing a firearm at

Morris.    Some of the warrants had been sworn out eight months

before Morris was shot.

        A Richmond police officer testified that twelve days before

Morris was killed, he investigated a complaint by Morris that

Buck had assaulted her.    The officer arrested Buck nine days

before Morris was killed and while being taken into custody,

Buck stated that Morris should not have taken out a warrant for

him, that "she was going to pay," and that he was "going to get

her."    Another deputy testified that while Buck was in custody

on this charge, he was in a "rage."    The deputy overheard Buck

on the telephone stating that he was "going to kill [Morris],

she didn't have to have me arrested, I'm going to kill her."

The deputy testified that she interceded and told Buck not to

make threats, but he persisted in stating that he would kill

Morris for having him arrested.

        Morris' brother testified that he saw Buck with a

.38 caliber handgun two months before his sister's death.

Morris' sister testified that during that same time period, she

witnessed Buck "grabbing" Morris and heard Buck "threaten to

kill Morris."    Tyree Morris testified that during the month

before his mother's death, he witnessed Buck push her over a

balcony and into a wall.




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                              ANALYSIS

     The question on appeal, as framed by appellant, is whether

the trial court erred by permitting the Commonwealth to

introduce irrelevant and prejudicial evidence in the form of

warrants charging unadjudicated crimes and witnesses' testimony

about past unrelated acts of violence between Morris and Buck.

The issue, as we perceive it, is whether the evidence of prior

bad acts by Buck against Morris and the fact that Morris had

Buck arrested is sufficiently relevant to prove a material fact.

In order to be admissible under one of the exceptions to the

rule barring the admission of evidence of other crimes or prior

bad acts, the evidence must be relevant and the probative value

of the evidence must outweigh any incidental prejudice.

     "'The admissibility of evidence is within the broad

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

on appeal in the absence of an abuse of discretion.'"   Crews v.

Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)

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

842 (1988)).   "Evidence which 'tends to cast any light upon the

subject of the inquiry' is relevant."    Cash v. Commonwealth, 5 Va.

App. 506, 510, 364 S.E.2d 769, 771 (1988) (citation omitted).

Evidence which tends to prove a material fact is relevant and

admissible, "'unless excluded by a specific rule or policy

consideration.'"   Evans v. Commonwealth, 14 Va. App. 118, 122, 415


                              - 4 -
S.E.2d 851, 853-54 (1992) (quoting Cash, 5 Va. App. at 510, 364

S.E.2d at 771).

     Evidence that the accused committed crimes or other bad

acts is inadmissible if offered solely to prove the accused

committed or likely committed the crime charged.     See

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,

805 (1970).   To infer that an accused probably committed the

charged offense because he or she has committed a similar

offense is unsound reasoning and, without other evidence making

the proof of a prior bad act or crime relevant to a material

fact in the case, such evidence is highly prejudicial and

inadmissible.     "[Similar crimes evidence] merely show[s] that

[an accused] has the propensity to commit the crime [charged]

and this inference has been held to be error because it reverses

his presumption of innocence."     Spence v. Commonwealth, 12 Va.

App. 1040, 1045, 407 S.E.2d 916, 918 (1991).

     However,

          [t]he many exceptions to the rule are as
          well established as the rule itself.
          Specifically, other crimes evidence is
          admissible where it shows the conduct and
          feeling of an accused toward his victim or
          establishes their prior relationship; where
          it proves motive or opportunity to commit
          the crime charged; where it proves an
          element of the crime charged; where it
          proves intent or guilty knowledge on the
          part of the accused . . . . Thus, in order
          to be admissible under one of the
          exceptions, evidence of other crimes must
          tend to prove a material fact and its

                               - 5 -
           probative value "must outweigh the prejudice
           inherent in proving that an accused has
           committed other crimes."

Rodriguez v. Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d

419, 422 (1994) (en banc) (citations omitted).

     Here, the evidence that Morris had sworn out warrants

against Buck for assaults and trespasses allegedly committed

against her and the witnesses' testimony concerning prior bad

acts committed by Buck against Morris were properly admitted to

show the nature of the relationship between the accused and the

victim and to prove that Buck harbored a motive to harm or kill

Morris.   It is the fact that warrants had been sworn out by

Morris against Buck, irrespective of the allegations in the

warrants, that proved that a contentious and tumultuous

relationship existed between the two.

     The fact that Morris had sworn out warrants against Buck

also proved that Buck had a motive and an intent to kill or do

harm to Morris.   See Callahan v. Commonwealth, 8 Va. App. 135,

141-42, 379 S.E.2d 476, 480 (1989) (finding that evidence of

defendant's threats and assaults on wife and children were

properly admitted to show the defendant's relationship with his

victims, which proves motive and intent).   Proof that an accused

has a motive to harm or kill a victim is admissible as

circumstantial evidence that the person committed the crime, see

Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229,


                             - 6 -
233-34, aff'd en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993),

and did so with a specific intent.     See Robinson v.

Commonwealth, 228 Va. 554, 557, 322 S.E.2d 841, 843 (1984).

Thus, we hold that the evidence that Morris had Buck arrested

was relevant to prove motive and to show the nature of the

relationship between the accused and the victim.     See Kelly v.

Commonwealth, 8 Va. App. 359, 369-71, 382 S.E.2d 270, 275-77

(1989) (finding that evidence that defendant previously

assaulted and battered his wife and was subsequently arrested

was admissible to show a past course of violence by the

defendant and a motive for killing his wife).

     In addition to the evidence that Morris had Buck arrested

on several occasions, on two occasions after Buck had been

arrested for allegedly assaulting Morris, he, in the presence of

two law enforcement officers, angrily expressed his intention to

kill Morris for having him arrested.     See generally, Moore v.

Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981) (noting

that where motive is a relevant fact, evidence of other offenses

is admissible if it shows the conduct or attitude of the accused

toward his victim or establishes the relationship between the

parties).   The evidence of specific threats by an accused to

harm or kill the victim is highly relevant to prove motive and

intent and is a circumstance that the fact finder may consider

in determining an accused's guilt.   Thus, the admission of the


                             - 7 -
specific threats Buck made after he was arrested, to kill or

harm Morris for having him arrested, was highly relevant to

prove motive.   In addition, the specific instances of Buck

"grabbing" and "pushing" Morris and threatening to kill her were

also relevant to prove the nature of the relationship between

the parties and to prove motive.

       Our inquiry does not end there, however.   In order for the

relevant evidence of other crimes and prior bad acts to be

admissible, the legitimate probative value of the evidence must

exceed any incidental prejudice caused Buck.      See Guill v.

Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489, 491-92 (1998).

Buck contends that the prejudicial effect of the evidence

outweighed the probative value because the offenses charged in

the warrants included allegations of unadjudicated crimes.       His

contention has no merit.

       The evidence was not offered to prove the truth of the

charges or crimes allegedly committed by Buck; but rather, the

evidence was offered to show that Morris had him arrested, which

defined their relationship and caused him to threaten to kill

her.   The trial court instructed the jury that the warrants were

not to be considered as proof of the charges in the warrants or

to prove that Buck had assaulted Morris in the past.     Rather,

the warrants were offered and admitted to prove that over an

eight-month period Morris had Buck arrested on numerous


                              - 8 -
occasions and that the continuous arrests provided a motive for

Buck to kill Morris.   The jury is presumed to have followed the

trial court's limiting or cautionary instruction.    See LeVasseur

v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983).

     In summary, we find that the trial court's admission of the

evidence of the warrants falls within an exception to the rule

barring the admission of evidence of prior bad acts and that the

trial judge did not err by finding that the probative value of

the testimony outweighed any prejudicial effect.    See Rodriguez,

18 Va. App. at 280-81, 443 S.E.2d at 422.   The admission of the

evidence was not an abuse of discretion.    We, therefore, affirm

the judgment of the trial court.

                                                          Affirmed.




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