                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia


ANTOINE LAMONT CHRISTIAN
                                           MEMORANDUM OPINION * BY
v.   Record No. 0212-02-2         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              DECEMBER 3, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       George F. Tidey, Judge

          David M. Gammino for appellant.

          John H. McLees, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General;
          Susan M. Harris, Assistant Attorney General,
          on brief), for appellee.


     A jury convicted Antoine Lamont Christian (appellant) of

voluntary manslaughter and use of a firearm in the commission of a

felony for the shooting death of Lawrence Lavonte "Capone"

Washington (Washington).    The sole issue raised on appeal is

whether the trial court erred by excluding testimony of specific

acts of the victim to prove his disposition for violence and

turbulence.   For the following reasons, we reverse appellant's

convictions and remand for further proceedings if the Commonwealth

be so advised.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                            I.    BACKGROUND

        On the afternoon of July 7, 2001 Washington and a friend

each drank 44 ounces of beer.      They were "just sitting around,

conversating [sic]" at the Randolph Court apartments.      Appellant

and his girlfriend Shanda Trice (Trice) arrived at the

apartments, and Trice approached Washington's group and greeted

them.    Shortly thereafter, appellant approached the group, gave

Washington "an evil look" and told Trice to "come on."      As

appellant and Trice walked away from the group and toward her

apartment, they appeared to be arguing.

        A short time later, appellant came out of Trice's apartment

and walked toward his car.       Washington approached him, and the

two "had words."    Stephanie Brown stated that the two spoke for

a "couple of minutes," and she saw Washington raise up his hands

and say, "Naw" as he took a step backward and appellant shot

him.    Shay Harris saw Washington walk over to appellant, speak

to him and then saw appellant shoot Washington.      Tanya Harris

said that appellant did not raise his voice and did not appear

upset.    Harris stated that appellant "walked back from the car

like he was going back up to Shanda's house" and that was when

Washington approached him.       Appellant then shot Washington.

None of the witnesses saw appellant with a gun prior to the

shooting.

        Appellant testified that he purchased his gun in February

2000 and carried it with him in a holster for the protection of

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his family and himself.   Appellant stated that he was aware of

shootings, drug deals and "drive-bys" in the neighborhood and

that was why he carried the gun.   Appellant described the

encounter with Washington as follows:

          I was coming from out my house and
          [Washington] said, "Hey, Nigger, let me
          holler at you." So I keeps on walking to
          get to my car, but I never make it to my
          car. . . . Because he approaches me fast.
          He was walking over to me fast. . . . I
          don't know what's going on. . . . He's like
          "Hey Nigger, let me holler at you. Nigger,
          why do you f------ keep on me? Nigger, you
          want a beef? Nigger, you want a beef,
          Nigger? What the f--- you want me to do,
          Nigger? I'm going to f--- your ass up,
          Nigger. What the f--- you want to do?"

     By this time, appellant and Washington were "face-to-face"

and Washington was "yelling and screaming" at appellant.     Trice

and appellant's daughter were standing next to appellant during

the confrontation.   When appellant saw Washington reach for his

waistband he "was scared at that time for my life.   I thought he

was grabbing for a gun, so I had to protect myself."    After the

shooting, appellant "ran in my car and left, because I was still

scared for my life out there with his friends living there."

     Appellant further stated that he had never spoken to

Washington until the day of the shooting.   Although appellant

"never had no dealings with him," he felt that Washington was

"bad news."   However, earlier in the day, appellant saw

Washington "and a couple of more young men was out there [at the

Randolph Court apartments].   Once my car came past the speed

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bump, [Washington] steps in front of my car.    I swerved over.     I

ain't pay it no mind.    I just went straight on."

        Washington was unarmed and died of a gunshot wound to the

head.    An autopsy report revealed that Washington's blood

alcohol was .20 or "two and a half times" the legal limit.

Appellant turned himself in to police on July 9, 2001.

        Appellant tried to introduce into evidence two instances

of Washington's character for violence and turbulence when he

had been drinking.    The trial court allowed Washington's former

girlfriend, Andrea Thomas, to testify.    Thomas stated that

Washington drank on "a daily basis."     On March 8, 2001, after

Washington had been drinking, he beat Thomas, broke her nose and

stole her car.    However, the trial court refused to allow two

police officers, who had attempted to arrest Washington on a

separate occasion, to testify and describe Washington's

aggressive behavior.    In that instance, the officers responded

to a domestic dispute that arose after Washington had been

drinking.    When the police arrived, Washington was arguing with

his girlfriend.    Although he was initially cooperative with

them, when one of the officers attempted to escort him from the

apartment and told him he was under arrest, he became violent.

He fought the two officers, and they were required to use mace

to subdue him.    Appellant argued that the additional testimony

was crucial to his defense because it would help him to

establish that Washington was the aggressor.    The trial court

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ruled, "I don't believe that the incident with the officers is

related to this.    I allowed Miss Thomas to testify, because it

involved a woman and some alcohol and that effects [sic] the

nexus I would say to the event of this day."    Appellant contends

the trial court's refusal to admit the additional testimony

regarding Washington's character for turbulence and violence was

reversible error.   We agree.

                         II.    ADMISSIBILITY

     "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."

Jones v. Commonwealth, 38 Va. App. 231, 236, 563 S.E.2d 364, 366

(2002) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988)).

     "It is well settled in Virginia that where an accused

adduces evidence that he acted in self-defense, evidence of

specific acts is admissible to show the character of the victim

for turbulence and violence, even if the accused is unaware of

such character."    Jordan v. Commonwealth, 219 Va. 852, 855, 252

S.E.2d 323, 325 (1979) (citing Barnes v. Commonwealth, 214 Va.

24, 197 S.E.2d 189 (1973); Stover v. Commonwealth, 211 Va. 789,

180 S.E.2d 504 (1971); Randolph v. Commonwealth, 190 Va. 256, 56

S.E.2d 226 (1949)).   "[S]uch evidence bears on the questions as

to who was the aggressor or what were the reasonable

apprehensions of the defendant for his life and safety."

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Randolph, 190 Va. at 265, 56 S.E.2d at 230.   "When evidence of

prior acts of violence against third parties is admissible, a

defendant is entitled to present such evidence in the most

tactically advantageous manner."   Craig v. Commonwealth, 14

Va. App. 842, 844-45, 419 S.E.2d 429, 431 (1992).

          The defense sought to introduce the evidence
          of prior drinking problems in order to
          support [appellant's claim of self-defense]
          in justification of the homicide. For that
          purpose the evidence was relevant and
          material. Where, as here, there is evidence
          that the victim was intoxicated at the time
          of the shooting, evidence of his character
          or reputation for turbulence when in such
          condition is admissible on the issue of
          self-defense.

Barnes, 214 Va. at 26, 197 S.E.2d at 190.

     Specifically, appellant proffered the testimony of the two

Henrico County police officers who had the violent encounter

with the victim two years earlier on January 22, 1999.   The

proffered testimony showed that Washington, who had been

drinking, refused to leave an apartment where his girlfriend was

located, fought the officers, pushed one to the floor and the

other into a wall.   Although the officers were not injured, they

had to use mace to subdue and control Washington.   This incident

was related to an argument between Washington and a former

girlfriend which escalated into a brawl with the uniformed

police officers.   Thus, the trial court's observation that the

incident involving Thomas had a nexus because it involved "a



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woman and some alcohol" was equally true of the police officers'

proffered testimony.

     "[T]he nature and quality of an overt act cannot be judged

in a vacuum.    Rather, the acts must be viewed through the eyes

of the person allegedly threatened."     Craig, 14 Va. App. at 844,

419 S.E.2d at 431.    Appellant testified that he feared for his

life when he shot Washington and that Washington had reached for

his waistband.    Appellant made it a regular practice to carry a

gun because he felt the neighborhood was not safe.    This belief

was reinforced by Officer Mule's testimony that the neighborhood

was "a high crime area."    The forensic examiner also admitted

that he had "responded to that apartment complex to collect

forensic evidence for other homicides."

     "[I]n support of his claim of self-defense, [appellant] had

the right to show . . . that [Washington] was a man of

violence."     Craig, 14 Va. App. at 845, 419 S.E.2d at 431.

Appellant's attempt to show Washington's propensity for violence

when he had been drinking was clearly relevant to that issue.

The two-year time frame between the incident with the police and

the shooting was not a bar to appellant's right to adduce the

proffered testimony at trial.    "Once a nexus for relevancy of

prior conduct or character has been established, as here, 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.    To bar such evidence altogether was

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error."   Barnes, 214 Va. at 26, 197 S.E.2d at 190-91 (holding

five years was not too remote).   Moreover, appellant sought to

adduce testimony of only two incidents.   Thus, there was no

danger of cumulative testimony.

                       III.   HARMLESS ERROR

     The Commonwealth contends that even if the testimony was

erroneously excluded, such error was harmless.   We disagree.

           We must reverse a criminal conviction unless
           it plainly appears from the record and the
           evidence given at the trial that the error
           did not affect the verdict. An error does
           not affect the verdict if we can determine,
           without usurping the jury's fact finding
           function, that, had the error not occurred,
           the verdict would have been the same.

Hanson v. Commonwealth, 14 Va. App. 173, 190, 416 S.E.2d 14, 24

(1992) (citing Code § 8.01-678; Lavinder v. Commonwealth, 12

Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)) (internal

quotations omitted).

           A reviewing court must take into account the
           burden of proof applied at trial when
           evaluating the impact of an error upon a
           verdict. To the extent that the impact of
           an error on a verdict is affected by the
           burden of proof, in a criminal case, the
           reviewing court must consider that the fact
           finder was required to reach its verdict
           beyond a reasonable doubt.

Lavinder, 12 Va. App. at 1006, 407 S.E.2d at 911 (internal

quotations omitted).   "The effect of an error on a verdict

varies widely depending upon the circumstances of the case.

Each case must, therefore, be analyzed individually to determine


                               - 8 -
if an error has affected the verdict."     Id. at 1009, 407 S.E.2d

at 913 (internal citations and quotations omitted).

     The "decisive issue" presented by the evidence at trial was

whether appellant acted in self-defense.     Id.   On that issue,

appellant was entitled to introduce evidence of Washington's

reputation for turbulence and violence, including specific acts,

when he was intoxicated.   The police officers' proffered

testimony was relevant and probative of Washington's character

for turbulence and violence when drinking.    The Commonwealth

specifically elicited testimony from Thomas that there "were

many times when [Washington] was drinking" that the two of them

"got along just great" and that the beating was a "one time

event."   Clearly evidence of another violent episode when

Washington was drunk was highly probative of who the aggressor

was in this case.   Without usurping the jury's fact finding

function, it is impossible for us to say whether this evidence

would have affected the verdict.   Accordingly, we reverse and

remand the case to the trial court for a new trial.

                                              Reversed and remanded.




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