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 
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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.