                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia


LINDA DARLINE KEENE
                                            MEMORANDUM OPINION * BY
v.          Record No. 0089-97-3           JUDGE NELSON T. OVERTON
                                               MARCH 17, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
                    Rudolph Bumgardner, III, Judge
            Scott Goodman for appellant.

            Michael T. Judge, Assistant Attorney General
            (Richard Cullen, Attorney General, on brief),
            for appellee.



     Linda Darline Keene (defendant) appeals her conviction in

the circuit court for the first degree murder of Mrs. Thelma

Frasher.    Defendant ascribes error to the trial court's exclusion

of two hearsay statements.    She argues that both statements were

admissible under exceptions to the hearsay rule.       Because we do

not agree, we affirm.

     The parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, no recitation of the facts is necessary.

     The first hearsay statement defendant sought to admit came

from Louise Hassett, Mrs. Frasher's friend of over seventy years.

 Ms. Hassett's health prevented her from testifying at trial.

However, during a pretrial deposition Ms. Hassett stated that
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mrs. Frasher considered defendant to be "the daughter she'd never

had."    Defendant sought to admit the deposition transcript under

the "state of mind" exception to the hearsay rule.

        "One seeking to have hearsay declarations . . . admitted as

an exception to the general rule must clearly show that they are

within the exception."    2 Charles E. Friend, The Law of Evidence

in Virginia § 18-8 (4th ed. 1993) (citing Doe v. Thomas, 227 Va.

466, 472, 318 S.E.2d 382, 386 (1984)).    The "state of mind

exception" requires three elements be satisfied:    the declaration

is relevant, refers to "a presently existing state of mind," and

has "no obvious indication of falsification or contrivance."
Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436,

441 (1987).    Ms. Hassett's statement fails the test because it

was not relevant to the case.

        The relevant state of mind in a trial for murder is only

occasionally that of the victim.     See Compton v. Commonwealth,

219 Va. 716, 729, 250 S.E.2d 749, 757 (1979) (holding the

victim's state of mind was relevant to support defendant's claim

that the homicide was accidental); Banovitch v. Commonwealth, 196
Va. 210, 221, 83 S.E.2d 369, 375 (1954) (holding the state of

mind of the victim was relevant when consent was offered as a

defense).    This Court in Evans-Smith stated the law on this issue

very clearly when we noted that the victim's state of mind was

relevant only when it was "probative of an ultimate issue in

[the] case."     Evans-Smith, 5 Va. App. at 198, 361 S.E.2d at 442.




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Such cases arise "where the defense contends the death was the

result of suicide, accident or self-defense."        Id.   Because

defendant offered no such defense, we hold that, under the

current state of the law, Ms. Hassett's statement was irrelevant

hearsay.

     We refuse defendant's invitation to overrule Evans-Smith and

hold the victim's state of mind was relevant to defendant's

motive or intent.   "Certainly, had the [defendant] possessed

motive or intent, either would have existed independent of the

victim's . . . state of mind."     Id.    Whether defendant

successfully lulled Mrs. Frasher into believing they shared a

filial relationship is not relevant to defendant's state of mind

when she caved in Mrs. Frasher's skull with a lawn mower blade.

     The second hearsay statement offered by defendant was that

of Ms. Wilda Robertson.   She told investigators that on the

morning of the murder defendant had spent approximately two hours

cleaning her house.   Ms. Robertson died before trial and was,

therefore, unavailable to testify.       Defendant argued that the

statement's "necessity and inherent trustworthiness" allowed

admission of the statement.   Defendant finally admitted that she

sought creation of a "residual hearsay exception" like that found

in the Federal Rules of Evidence.        Fed. R. Evid. 804(b)5.   The

lower court refused to apply federal statutory law to a purely

state prosecution for murder, as do we.        See Chandler v.
Commonwealth, 249 Va. 270, 279, 455 S.E.2d 219, 225 (1995).




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     Defendant in her appellate brief and argument has suggested

yet another exception to the hearsay rule.    She offers State v.

Hurst, 487 S.E.2d 846 (N.C. Ct. App. 1997), a case from North

Carolina which describes a six-step test for admissibility of

certain hearsay statements.    In fact, when the trial court

ordered defense counsel to brief the admissibility of Ms.

Robertson's statement, defense counsel could have offered the

Hurst test. 1   Yet he failed to submit any brief at all.    Because

defendant did not see fit to present her argument to the lower

court, we may not consider it for the first time on appeal.       See

Rules 5A:12 and 5A:18.    See also Jacques v. Commonwealth, 12 Va.

App. 591, 593, 405 S.E.2d 630, 631 (1991).

     Because we find both statements to be hearsay not covered by

a recognized exception, both statements were properly excluded.

Accordingly, we affirm defendant's conviction.

                                                            Affirmed.




     1
      This test has been the law of North Carolina for many years
and was available to defendant at the time of trial. See State
v. Peterson, 446 S.E.2d 43, 48 (N.C. 1994) (citing State v.
Triplett, 340 S.E.2d 736, 741 (N.C. 1986)).




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