                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and
         Senior Judge Hodges
Argued at Richmond, Virginia

CLARENCE E. JONES

v.        Record No. 1071-94-2          MEMORANDUM OPINION *
                           BY JUDGE ROSEMARIE P. ANNUNZIATA
COMMONWEALTH OF VIRGINIA                  AUGUST 1, 1995


           FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
                  Robert G. O'Hara, Jr., Judge
     John F. McGarvey for appellant.

     Katherine P. Baldwin, Assistant Attorney General (James S.
     Gilmore, III, Attorney General, on brief), for appellee.



     Clarence E. Jones (appellant) was tried by a jury and found

guilty of murder, attempted murder, and two counts of the use of

a firearm in the commission of a felony.   On appeal, he argues

that the trial court erred in (1) permitting Calvin Maryland

(Maryland) to testify that he saw appellant and the murder victim

together in the nude at Maryland's house several months before

the murder; (2) refusing to allow him to impeach a witness with

inconsistent statements contained in a transcript of the witness'

preliminary hearing testimony; (3) refusing to admit evidence

about a conversation overheard between the decedent and an

unknown man; and (4) admitting into evidence bullets found in his

vehicle and the certificate of analysis of the bullet fragment

taken from the decedent.   We find no reversible error and affirm

     *
       Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
the convictions.

        "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."      Martin v. Commonwealth,

4 Va. App 438, 443, 358 S.E.2d 415, 418 (1987).

        On March 3, 1991, Patty Maryland (Patty) and Albert Garrett

(Garrett), sitting together in a parked vehicle, were approached

by a vehicle driven by appellant.      Appellant got out of his

vehicle, walked towards Patty and Garrett, and threatened to kill

them.    Appellant pulled out a handgun and began firing.   Garrett

fled into the woods where he got lost and remained for several

hours.    Patty's body was found in her vehicle.   She had died from

a gunshot wound to her head.
        The police went to appellant's home at 4:00 a.m. on March 4

and received appellant's consent to search his home.     Appellant

further consented to the search of the vehicles outside his home,

and supplied the keys to these vehicles.     Inside one of the

vehicles, which appellant identified as his, police located a box

of bullets.

        Several months prior to her death, Patty had had an affair

with appellant.    However, at the time of her death she was having

an affair with Garrett, a fact known to the appellant.      One week

prior to the murder, Garrett called Patty at her house.     During

their conversation, appellant picked up the phone and joined the

conversation.    Later that same day, appellant called Garrett from



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Patty's home and advised him to end his affair with Patty.




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                                I.

     Maryland, the victim's husband, testified that, five months

before his wife was killed, he observed her and appellant

together in the nude at his home.    Appellant argues that this

testimony was not relevant and was prejudicial.

     "Every fact, however remote or insignificant, that tends to

establish the probability of a fact in issue, is relevant, and if

otherwise admissible, should be admitted."    Harrell v. Woodson,

233 Va. 117, 122, 353 S.E.2d 770, 773 (1987).   To establish

appellant's guilt of first degree murder, the Commonwealth was

required to prove that the killing was intentional, premeditated

and deliberate.   "[A]lthough motive is not a necessary element of

the crime of first degree murder, `it is relevant and often most

persuasive upon the question of the actor's intent.'"    Archie v.

Commonwealth, 14 Va. App. 684, 690, 420 S.E.2d 718, 722 (1992)

(quoting Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d

882, 892-93 (1982)).

     Maryland's testimony showed that Patty and appellant had an

intimate relationship five months prior to the killing and just

three and one-half months prior to her involvement with Garrett.

In light of the evidence of appellant's attempts to end Patty's

affair with Garrett, Maryland's testimony tended to establish

that appellant followed Patty and killed her out of jealousy or

retribution.   The testimony was thus relevant to the issue of

whether the killing was intentional and premeditated.



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     Although relevant, evidence may be excluded if its

prejudicial effect is greater than its probative value.      It is

the responsibility of the trial court to make the determination,

based on the court's sound discretion, and the ruling will not be

disturbed on appeal absent a clear abuse of discretion.       Wise v.

Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988).

      At trial, appellant himself testified that he had had an

affair with Patty.   Therefore, any prejudice that may have

resulted from Maryland's testimony was outweighed by its

probative value.   The trial court did not abuse its discretion in

admitting Maryland's testimony.
                                  II.

     The trial court declined to permit defendant to use an

uncertified transcript to cross-examine Garrett about whether or

not the killer wore gloves on the night of the murder.      The

transcript was based on a tape-recording of Garrett's preliminary

hearing testimony.

     It is unclear from the record whether defendant intended to

use the transcript to refresh Garrett's recollection or to

impeach him.   However, based on his assumption that its use was

for the latter purpose, the trial judge correctly stated that a

transcript of a prior proceeding, introduced into evidence for

purposes of impeachment by prior inconsistent statement, must be

proven accurate by its proponent.       See Hall v. Commonwealth, 233

Va. 369, 374, 355 S.E.2d 591, 594 (1987); Edwards v.



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Commonwealth, 19 Va. App. 568, 571, 454 S.E.2d 1, 2 (1995)

(quoting 1 Charles E. Friend, The Law of Evidence in Virginia

§ 4-3(a), at 119 (4th ed. 1993)).     Defendant's acquiescence in

the trial judge's statement of the law precludes reversal on the

ground that an uncertified transcript could be used for the

purpose of refreshing recollection.    Rule 5A:18.

     The court's ruling also prevented defendant's use of the

audiotape to authenticate the transcript of the prior testimony,

and the use of the audiotape itself for impeachment.    Assuming

the ruling was error, it was harmless because it plainly appears

from the facts and circumstances of the case that the error did

not affect the verdict.   See Lavinder v. Commonwealth, 12 Va.

App. 1003, 1005, 407 S.E.2d 910, 911 (1991).    On three other

occasions during his testimony, Garrett testified that he did not

recall his earlier testimony about whether the killer wore gloves

on the night of the murder.   Garrett also admitted

inconsistencies existed between his present and former testimony

at the preliminary hearing.   That the jury was not exposed to yet

another inconsistency on a collateral issue had no significant

effect upon Garrett's impact as a witness.     Williams v.

Commonwealth, 4 Va. App. 53, 78, 354 S.E.2d 79, 93 (1987).       Thus,

any error the trial judge may have committed was harmless.
                               III.

     Appellant proffered Lawrence Riley's testimony that he

overheard an unknown man threaten to kill Patty a few days before




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her death.   The man was not appellant, and Riley could not

identify him.   The trial court ruled the statement was hearsay

and not admissible.

     On appeal, appellant argues that, although hearsay, the

statement falls under the "state-of-mind" exception to the

hearsay rule.
          The "state-of-mind" exception is one of . . .
          [the] recognized exceptions. If the
          declarant's state of mind is relevant to the
          case, then admissions of the declarant's
          mental state are admissible, providing they
          "refer to a presently existing state of mind"
          and there is "no obvious indication of
          falsification or contrivance."

Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436,

441 (1987) (citation omitted).

     Here, the state of mind of the unidentified man was not

relevant to any issue in the case.      Furthermore, such statements

may be admitted into evidence only when there is some "factual

support in the record which would tend to substantiate or

corroborate them."     Id. at 199, 361 S.E.2d at 442.   There was no

inherent reliability in or corroboration of Riley's hearsay

statement.   See id.    Thus, the trial judge did not err in

excluding it.
                                  IV.

     When the police went to appellant's home after the killing,

appellant gave the officers the keys to the vehicles parked

outside and permitted the police to search them.     Inside a

vehicle that appellant identified as his, the police found a box



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containing .38 and .357 caliber bullets.   The certificate of

analysis regarding the bullet fragment taken from the victim

stated that the bullet was fired from a .38 or a .357 caliber

weapon.

     "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."   Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).

"Evidence which bears upon and is pertinent to matters in issue,

and which tends to prove the offense, is relevant and should be

admitted."    Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820,
823 (1986).

     When considered in conjunction with the certificate of

analysis, the bullets found in appellant's car were relevant to

link him to the murder.   We find no abuse of discretion in the

trial court's decision to admit the bullets and the certificate

of analysis.

     The judgment of the trial court is affirmed.

                                               Affirmed.




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