COURT OF APPEALS OF VIRGINIA

Present: Judg es Coleman, Frank and Senior Judge Hodges Argued at Salem, Virginia

TIMOTHY WAYNE ABBOTT MEMORANDUM OPINION * BY v. Record No. 1887-98-3 JUDGE SAM W. COLEMAN III JANUARY 18, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. St rauss, Judge Mark T. Williams (Wil liams, Morrison, Light & Moreau, on brief), for appellant. Steven A. Witmer, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Timothy Wayne Ab bott was convicted foll owing a jury trial of first-degree murder of his wife, Meli ssa Abbott, in violation of Code § 18.2-32, and use of a firearm in the co mmission of a felony in violation of Code § 18.2-53.1. On appeal , Abbott argues that the trial court erred by admitting: (1) testimon y from the victim's friend that th e victim had stated th at she was afraid of Abbott; (2) a tape recording of a telephon e conversation between Abbott and an uniden tified woman; (3) ev idence of Abbott's firearms collection; (4 ) evidence that Abbott was th e beneficiary of the victim's life insurance poli cy; and (5) ev idence that- 2 - Abbott previously stru ck the victim. For th e reasons that follow, we affirm th e convictions. BACKGROUND Viewed in the ligh t most favorable to the Commonwe alth, the evidence established th at on February 8, 19 97, at approximately 8:00 p.m., the victim was shot and killed by a single gunshot wound as she returned ho me from work. Ronald Burch, the Abbotts' neighbor, test ified that shortly after 8:00 p.m., Ti mothy Wayne Abbott came to Burc h's house and po unded on his door. Burch described Abbott as hysterical. Unable to understa nd what Abbott was mumbling, Bu rch followed Abbott to his home where Burch observed that th e front door had been sh attered and a purse and firearm were lying on the porch. Bu rch found Abbott inside the residence, slumped by th e bed in the master be droom. Abbott asked Burch if he had ca lled 911. Abbott stated that he had shot his wife. Burch quickly di aled 911 and waited fo r the author ities to arrive. When the authoritie s arrived, the victim was found lying to the right of Abbott's pick-up truc k which was pa rked in the driveway. Abbott was lying over the victim's body, crying. The victim's keys were in the front door of the residenc e and the lock was unlocked. A bullet casing was found 4'7" from the front wall of the residence, and a bullet was found in the front yard.- 3 - At trial Abbott test ified that he loved his wife dearly and that they were devoted to one another. Abbott test ified that he kept a gun with him at all times for prot ection. The gun was always in immedi ate reach, loaded, and withthe safety off. He stated that when he wa s not traveling as part of his employment as a truck driver, he kept the gun in the house for pr otection. Abbott testified that his house had been broken into on one occasion, and on a separate occasion, a "p eeping tom" had been seen near the house. On the day of the shooting , Abbott arrived home at approximately 7:00 p.m. and fell asleep on the dayb ed in the living room. He testif ied that he was awakened by a loud noise. "[P]anic stricken," Ab bott noticed that the front door was open. Abbott testified that the next thing he reme mbered was that "the gun was in his hand and that it had just been fired." He observed the person he shot move away from the fron t door, so he proceeded onto the porch. At th at point, he re alized that he had shot his wife. Abbott testified that he first called 911, then went to his neighbor's house and asked him to call for help. When Abbott returned from hi s neighbor's hous e, his wife's bo dy was lying in the driveway by the pick-u p truck. When asked about a life insurance policyand their financial situation, Abbott test ified that he was unaware that his wife had- 4 - a life insurance policy and of any financia l problems they may have been having. He stated that he was no t involved in paying the bills or in any aspect of the ho usehold fi nances. The assistant chie f medical exam iner testified that the victim died from a sing le gunshot wound to the chest, just left of center. The bullet pa ssed through the chest cavity from right to left, causing in ternal injuries and bl eeding. The medical examiner testified that the en trance and exit wounds were horizontal. A forensic scientist test ified that Abbo tt held the firearm approxim ately eighteen to thirty-six inches away from the victim when he fire d the weapon and that at least five and one-half pounds of pres sure were required to pull the trigger. The Commonwealth also introduced the eviden ce of a friend of the victim who testifie d that Abbott struck the victim two weeks before the shooting, th at he repeatedly ca lled her derogatory names, and that he cr iticized her about her appearance. Another friend of the vi ctim testified over object ion that the victim had told her she was afraidof Abbott. In addi tion, the Co mmonwealth introduced an au dio recording of a telephone conv ersation that Abbott had with an un identified female in which Abbott made derogatory remarks ab out his wife and disc ussed coming to the woman's house "for a drink" and to "watcht.v. in he r bedroom."- 5 - ANALYSIS "'The admissib ility of evidence is within the broad discretion of th e trial court, and a ruling will not be disturbed on appeal in the ab sence of an abuse of discretion.'" Crews v. Commonwealth , 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994) (citation omitte d). "Evidence whic h 'tends to cast any light upon the subject of the inqu iry' is re levant." Cash v. Co mmonwealth , 5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1 988). Evidence which tends to prove a materi al fact is relevant and admissib le, unless excluded by a specific rule or poli cy consideration." Evans v. Commonwealth , 14 Va. App. 118, 122, 415 S.E.2d 851, 853-54 (1992). A fact is material if it tends to prove an element of an offense or defense. Johnson v. Commonwealth , 2 Va. App. 59 8, 601, 347 S.E.2d 163, 165 (198 6). "Every fact, however remote or insignificant, that tends to establish the probab ility or improbability of a fact in issue, is admissible." Epperly v. Commonwealth , 224 Va. 214, 23 0, 294 S.E.2d 88 2, 891 (1982) (citation om itted). A. Victim's Prio r Statement of Fear Abbott argues that the trial court erre d in admitting Patty Lacks' testimony that the victim, one month prior to the shooting, stated that she was af raid of Abbott. Abbo tt argues that the

statement was not admissible under the stat e-of-mind ex ception to the hearsay rule becaus e the Commonweal th failed to show that the- 6 - statement was ma terial, relevant , and otherwis e reliable. Further, he argu es that there was no evid ence that th e victim's state of mind wa s ever communic ated to him. "'"Hearsay evidence is te stimony in court . . . of a statement made out of court [that is] offered as an assertion to show the truth of matt ers asserted therein, and thus resting for its value upon the cred ibility of the out-of-c ourt asserter."'" Taylor v. Commonwealth , 28 Va. App. 1, 9, 502 S.E.2d 113, 117 (1998) ( en banc ) (citations omitted). If, however, the statement is admitted to prove some other extraneous fact, such as that the statement was in fact made, the state of mind of the declarant, or notice or knowledge, then the statement is not hearsay and will be admissible if relevant and not otherwise violative of another rule of evidence. Hanson v. Commonwealth , 14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992) (citing Evans-Smith v. Commonwealth , 5 Va. App. 188, 197, 361 S.E.2d 436, 441 (1987)). The state of mind of a homicide victim may be relevant and material where the defendant contends that the death was the result of suicide, accident, or self-defense. See Hanson , 14 Va. App. at 188, 416 S.E.2d at 23. For the state of mind of the victim to be relevant to prove the state of mind of the accused, some nexus must exist which inferentially implicates the accused, such as by showing "previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant."- 7 - Id. at 188-89, 416 S.E.2d at 23 (citation omitted). Thus, as we noted in Hanson , the victim's state of mind may be relevant to prove the defendant's state of mind where it has been communicated to the defendant. However, the relevance of the victim's state of mind may also be established by showing some other nexus "which inferentially implicates the accused." Id. Accordingly, the Commonwealth is not limited to establishing relevance by proving that a victim's statements were communicated to the defendant, if the statement showing the victim's state of mind is shown to reflect the defendant's state of mind or relationship with the victim by other independent evidence. See id. ; cf. Elliot v. Commonwealth , 30 Va. App. 430, 517 S.E.2d 271 (1999). But see Clay v. Commonwealth , 30 Va. App. 650, 519 S.E.2d 393 (1999) (rehearing en banc pending). At trial, Lacks test ified that approximat ely one mont h before the shooting, she heard the victim state that she was afraid of Abbott. Over ob jection, the trial court admitted the testimony, finding that it was relevant to prove the victim's state of mind, which tended to prove the nature of the marital re lationship. Abbott testified that the victim's death was an accident, rather than an intentional act by him, and that their marriage was "a very good one." Abbott's state of mind was a critical issue in the case in that it was relevant and material to whether the shooting was accidental. See Elliot , 30 Va. App. at- 8 - 438, 517 S.E.2d at 275. The victim's state of mind was relevant to prove the nature of the marital relationship which, in turn, was probative of Abbott's state of mind and whether he harbored a motive and intent to kill his wife. See Compton v. Commonwealth , 219 Va. 716, 729, 250 S.E.2d 749, 757 (1979) (evidence of prior relations existing between accused and victim relevant to issue of whether death was accidental). The victim's statement that she feared her husband occurred within one month of the shooting. The statement and circumstances under which it was made do not suggest fabrication and contrivance. The evidence of the victim's fearful state of mind was also corroborated by the Commonwealth's evidence that Abbott had struck the victim within two weeks of the shooting and that he often called her derogatory names and "ordered the victim around." Therefore, the victim's state of mind was relevant and admissible. See Hanson , 14 Va. App. at 188-89, 416 S.E.2d at 23. B. Answerin g Machine Tape Abbott argues that the trial court erred by admitting a tape recording of a telephon e conversation which su ggested that Abbott was engaged in an extramarital affair. Abbott, relying on Brown v. Commonwealth , 3 Va. App. 182, 348 S. E.2d 849 (1986), argues that the tape recording, which failed to identi fy the female participant or wh en the conversati on occurred, wa s inadmissible- 9 - because the conv ersation was simply too speculative and conjectural. "[I]n a prosecutio n for the murder of one's spouse the Commonwealth generally may in troduce evidence of marital infidelity and may offer releva nt evidence to show marital disharmony or to rebut evid ence of mari tal bliss." Brown , 3 Va. App. at 185, 348 S.E. 2d at 851. During cross-ex amination, the Commonwealth was permit ted, over objection, to intr oduce portions of an answering machine tape recording th at was recovered by the victim's stepmother th ree to four weeks afte r the shooti ng. In the taped conversa tion, an unidentified wo man invited Abbott to her home to have drinks and watch tele vision in her bedroom. On the tape, Abbott described the victim in angr y terms, using profanity. Abbott admitted that the male voice "s ounded like" him but testified that he did not recall the conversation and could not identify the speakers. The Commonwealth proffered the tape recording to rebut Abbott's assertion that he was devoted to his wife and that they had a "very good," stable marriage. The evidence was relevant to prove the relationship in the recent past between Abbott and the victim. Moreover, Abbott's reliance on Brown is misplaced. In

Brown , the defendant maintained that his wife was killed by an intruder. Evidence was introduced that the defendant had given- 10 - gifts to two women four to eight years prior to the wife's murder and that the defendant had photographed one of the women. There was no direct evidence of a sexual relationship between the defendant and either of the women. Under these circumstances, we concluded that the innocuous and inclusive nature of the evidence combined with the lapse of four to eight years between these incidents and the murder of [the victim] do not afford any "reasonable presumption or inference on matters in issue" and fail to provide a logical and natural connection to [the defendant's] guilt. 3 Va. App. at 186, 348 S.E.2d at 852. Here, the evidence was recent and relevant to establish the nature of the marital relationship and to rebut Abbott's testimony of marital bliss. The evidence was not remote; rather, the victim's stepmother testified that she recovered the tape from the answering machine a couple of weeks after the shooting. Thus, the evidence was probative of Abbott's motive. C. Abbott's Famili arity With Firearms Next, Abbott argues that the trial cour t erred by allowing the Commonweal th to elicit evidence re garding his gu n collection and by admitting into evidence a photograph of the collection. Abbott contends that the trial court's rulings improp erly allowed the Commonweal th to impeach him by introducing ex trinsic evidence on a collateral issue.- 11 - "A witness may not be cross-examined regarding any fact irrelevant to th e issues on trial when that cros s-examination is for the mere purpose of impeaching his credit by contra dicting him . . . [nor] may [he] be asked about any co llateral independent fact 'merely with a vi ew to contradict him afterwards by calling another witn ess.'" Simpson v. Commonwealth , 13 Va. App. 604, 606, 414 S.E.2d 407, 409 (1 992) (citation omitted) . "'The test as to whether a matter is material or collateral, in the matter of impeachment of a witnes s, is whether or no t the cross- examining party would be entitled to prove it in supp ort of his case.'" Williams v. Commonwealth , 16 Va. App. 928, 93 5, 434 S.E.2d 343, 347 (1993) (quoting Allen v. Commonwealth , 122 Va. 834, 842, 94 S.E. 783, 786 (1918)). During cross-exam ination of Abbott, the Commonwealth undertook to discredit his claim that the shoo ting was accidental by proving that he wa s knowledgeable and familiar wi th the use and handling of fire arms. Abbott te stified that he had a "little" experience with firearms. He ad mitted that he had been in the Army and had been trai ned in the "basics" of firearm us age. He also acknowledged that he owned seve ral firearms at the time of the shooting and that he was familiar with using all of them. Over Abbott's object ion, the Commonwealththen tendered a photograph showing his gun collection. Abbott stated that the picture accurate ly depicted the collec tion. On re-direct- 12 - examination, Abbott po inted out that three of the weapon s were BB

guns. The principle th at prohibits a wi tness from being cross-examined and impeached on a collateral issue is not applicable here. Gene rally, evidence impeac hing a witness on a collateral issue is irrelevant or of such little probative value that admitting it would confuse the fact finder or divert the fact finder's attention from the relevant issues. Here, the evidence regarding the va stness of Abbo tt's gun collection and his experience with the weapons was re levant to dispro ve a material issue that Abbott inte rjected into the case. The evidence that Abbott had an extens ive gun collec tion and experience with firearms was not offe red solely to impeach his pr ior testimony that he had a "lit tle" experience with fire arms but was offered to disprove his contention that the shooting wa s accidental. Proof that a person is famili ar with and has had tr aining in the use of firearms is a ci rcumstance that a fact finder ma y consider in determining whet her to believe a pers on's claim that he accidentally discharged a firearm which kill ed his spouse. We find that the trial co urt did not err by admitting th e photograph and by allowing the Commonwealth to in quire abou t the gun collection.- 13 - D. Life In surance Policy Abbott next contends that the trial cour t erred by admitting evidence that he was the beneficiary of the victim's $50,000 life insurance policypurchased thre e years before the shooting. Abbott argues that th e evidence was remote and specul ative and contained litt le probative value. Whether an accused ha s knowledge of a fact or situation when he behaves in a certain way or has a motive to behave in a certain way may be relevant in determ ining the accuse d's intent. 1 Charles E. Friend, The Law of Eviden ce in Virginia § 12-6 (4th ed. 1993). However, "[b]efore a fact or circumstance is admissible in evidence against a party to show motive, such fact or circumstance must be shown to have probably been known to him, otherwise it could not have influenced him, for a man cannot be influenced or moved to act by a fact or circumstance of which he is ignorant." Robinson v. Commonwealth , 228 Va. 554, 558, 322 S.E.2d 841, 843 (1984) (quoting Mullins v. Commonwealth , 113 Va. 787, 789-90, 75 S.E. 193, 195 (1912)). Although the Commonwealth sought to introduce evidence that Abbott was experiencing financial difficulties, Abbott disavowed any knowledge of the couple's financial problems, stating that the victim had control over the household finances. Further, Abbott testified that even though he was initially aware that he was the beneficiary of the victim's life insurance policy, he- 14 - had forgotten about the policy until recently. Moreover, he points out that no evidence shows he had tried to collect on the policy. In fact, the evidence proves a claim was filed by the victim's father, who was the administrator of the victim's

estate. Evidence of the life insurance policy was relevant to the issue of whether Abbott had a motive for killing his wife. See Mullis v. Commonwealth , 3 Va. App. 564, 574, 351 S.E.2d 919, 925 (1987) (recognizing that defendant's knowledge that victim owned life insurance policy naming defendant as beneficiary was relevant to show motive). Even though Abbott testified that he had recently forgotten about the life insurance policy, he had knowledge of the exis tence of the policy. The fact that he disavowed a presen t knowledge of the policy or of the couple's dire financial situatio n goes to the weight of the evidence, not its admissib ility. See generally Wise v. Co mmonwealth , 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988); see also Duncan v. Commonwealth , 2 Va. App. 717, 723-25, 347 S.E. 2d 539, 543-44 (1986). We find no abuse of discretion in the trial court's determination that the probativ e value of the ev idence exceeded any prejudicial effect that may ha ve resulted from its admiss ion.- 15 - E. Prior Ph ysical Abuse Last, Abbott argues that the trial court's admission of evidence that he previously had struck his wife was improper character evidence. Evidence that an accused committed crimes or other bad acts is inadmissible when offered 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). "[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 or negates good faith or the possibility of mistake or accident; where it proves the identity of the accused as the one who committed the crime charged by showing criminal acts so distinct as to indicate a modus operandi ; and where it demonstrates a common scheme or plan of which the crime charged is part. Thus, in order to be admissible under one of the exceptions, evidence of other crimes must tend to prove a material fact and its probative value "must outweigh the prejudice- 16 - 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). Joyce Davis testified, over objection, that two weeks before the shooting Abbott and the victim visited Davis at her home. Just before leaving, Abbott ordered the victim to go start the truck. When the victim refused, Abbott became frustrated and forcefully struck the victim in the face. On cross-examination, Abbott admitted that he hit the victim on that occasion, but he maintained that it was a "playful" tap. Here, the evidence tended to establish the nature of the marital relationship, which Abbott testified was a loving one, and tended to show Abbott's feelings toward his wife, which he later testified was devotion. Evidence showing the relationship between Abbott and his wife was probative to show Abbott's motive and intent. 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 was properly admitted to show the defendant's relationship with his victims, which proves motive and intent). The evidence that Abbott struck his wife falls within an exception to the rule barring the admission of evidence of prior bad acts, and the trial judge did not err by finding that the probative value of the testimony outweighed any prejudicial effect. See Rodriguez ,- 17 - 18 Va. App. at 280-81, 443 S.E.2d at 422. Thus, the trial court did not err by admitting the testimony. For the foregoing reasons, we affirm the convictions. Affirmed.