COURT OF APPEALS OF VIRGINIA 

Present: Judges 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. Strauss, Judge 

 Mark T. Williams (Williams, Morrison, Light & 

Moreau, on brief), for appellant. 

 Steven A. Witmer, Assistant Attorney 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 Abbott was convicted following a jury trial of 

first-degree murder of his wife, Melissa Abbott, in violation of 

Code § 18.2-32, and use of a firearm in the commission of a felony 

in violation of Code § 18.2-53.1. On appeal, Abbott argues that 

the trial court erred by admitting: (1) testimony from the 

victim's friend that the victim had stated that she was afraid of 

Abbott; (2) a tape recording of a telephone conversation between 

Abbott and an unidentified woman; (3) evidence of Abbott's 

firearms collection; (4) evidence that Abbott was the beneficiary 

of the victim's life insurance policy; and (5) evidence that 
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Abbott previously struck the victim. For the reasons that follow, 

we affirm the convictions. 

BACKGROUND

 Viewed in the light most favorable to the Commonwealth, the 

evidence established that on February 8, 1997, at approximately 

8:00 p.m., the victim was shot and killed by a single gunshot 

wound as she returned home from work. Ronald Burch, the Abbotts' 

neighbor, testified that shortly after 8:00 p.m., Timothy Wayne 

Abbott came to Burch's house and pounded on his door. Burch 

described Abbott as hysterical. Unable to understand what Abbott 

was mumbling, Burch followed Abbott to his home where Burch 

observed that the front door had been shattered and a purse and 

firearm were lying on the porch. Burch found Abbott inside the 

residence, slumped by the bed in the master bedroom. Abbott asked 

Burch if he had called 911. Abbott stated that he had shot his 

wife. Burch quickly dialed 911 and waited for the authorities to 

arrive. 

 When the authorities arrived, the victim was found lying to 

the right of Abbott's pick-up truck which was parked in the 

driveway. Abbott was lying over the victim's body, crying. The 

victim's keys were in the front door of the residence 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. 
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 At trial Abbott testified that he loved his wife dearly and 

that they were devoted to one another. Abbott testified that he 

kept a gun with him at all times for protection. The gun was 

always in immediate reach, loaded, and with the safety off. He 

stated that when he was not traveling as part of his employment as 

a truck driver, he kept the gun in the house for protection. 

Abbott testified that his house had been broken into on one 

occasion, and on a separate occasion, a "peeping 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 daybed in the 

living room. He testified that he was awakened by a loud noise. 

"[P]anic stricken," Abbott noticed that the front door was open. 

Abbott testified that the next thing he remembered 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 front door, so he proceeded 

onto the porch. At that point, he realized 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 his neighbor's house, his wife's body was lying in 

the driveway by the pick-up truck. 

 When asked about a life insurance policy and their financial 

situation, Abbott testified that he was unaware that his wife had 
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a life insurance policy and of any financial problems they may 

have been having. He stated that he was not involved in paying 

the bills or in any aspect of the household finances. 

 The assistant chief medical examiner testified that the 

victim died from a single gunshot wound to the chest, just left of 

center. The bullet passed through the chest cavity from right to 

left, causing internal injuries and bleeding. The medical 

examiner testified that the entrance and exit wounds were 

horizontal. A forensic scientist testified that Abbott held the 

firearm approximately eighteen to thirty-six inches away from the 

victim when he fired the weapon and that at least five and 

one-half pounds of pressure were required to pull the trigger. 

 The Commonwealth also introduced the evidence of a friend of 

the victim who testified that Abbott struck the victim two weeks 

before the shooting, that he repeatedly called her derogatory 

names, and that he criticized her about her appearance. Another 

friend of the victim testified over objection that the victim had 

told her she was afraid of Abbott. In addition, the Commonwealth 

introduced an audio recording of a telephone conversation that 

Abbott had with an unidentified female in which Abbott made 

derogatory remarks about his wife and discussed coming to the 

woman's house "for a drink" and to "watch t.v. in her bedroom." 
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ANALYSIS

 "'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.'" Crews v. 

Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994) 

(citation omitted). "Evidence which 'tends to cast any light upon 

the subject of the inquiry' is relevant." Cash v. Commonwealth, 

5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988). Evidence which 

tends to prove a material fact is relevant and admissible, unless 

excluded by a specific rule or policy 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. 598, 601, 347 

S.E.2d 163, 165 (1986). "Every fact, however remote or 

insignificant, that tends to establish the probability or 

improbability of a fact in issue, is admissible." Epperly v. 

Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982) 

(citation omitted). 

A. Victim's Prior Statement of Fear 

 Abbott argues that the trial court erred in admitting Patty 

Lacks' testimony that the victim, one month prior to the shooting, 

stated that she was afraid of Abbott. Abbott argues that the 

statement was not admissible under the state-of-mind exception to 

the hearsay rule because the Commonwealth failed to show that the 
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statement was material, relevant, and otherwise reliable. 

Further, he argues that there was no evidence that the victim's 

state of mind was ever communicated to him. 

 "'"Hearsay evidence is testimony in court . . . of a 

statement made out of court [that is] offered as an assertion to 

show the truth of matters asserted therein, and thus resting for 

its value upon the credibility of the out-of-court 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." 
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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 testified that approximately one month before 

the shooting, she heard the victim state that she was afraid of 

Abbott. Over objection, 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 relationship. 

 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 
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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. Answering Machine Tape

 Abbott argues that the trial court erred by admitting a tape 

recording of a telephone conversation which suggested 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 identify the female 

participant or when the conversation occurred, was inadmissible 
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because the conversation was simply too speculative and 

conjectural. 

 "[I]n a prosecution for the murder of one's spouse the 

Commonwealth generally may introduce evidence of marital 

infidelity and may offer relevant evidence to show marital 

disharmony or to rebut evidence of marital bliss." Brown, 3 Va. 

App. at 185, 348 S.E.2d at 851. During cross-examination, the 

Commonwealth was permitted, over objection, to introduce portions 

of an answering machine tape recording that was recovered by the 

victim's stepmother three to four weeks after the shooting. In 

the taped conversation, an unidentified woman invited Abbott to 

her home to have drinks and watch television in her bedroom. On 

the tape, Abbott described the victim in angry terms, using 

profanity. Abbott admitted that the male voice "sounded 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 
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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 Familiarity With Firearms

 Next, Abbott argues that the trial court erred by allowing 

the Commonwealth to elicit evidence regarding his gun collection 

and by admitting into evidence a photograph of the collection. 

Abbott contends that the trial court's rulings improperly allowed 

the Commonwealth to impeach him by introducing extrinsic evidence 

on a collateral issue. 
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 "A witness may not be cross-examined regarding any fact 

irrelevant to the issues on trial when that cross-examination is 

for the mere purpose of impeaching his credit by contradicting him 

. . . [nor] may [he] be asked about any collateral independent 

fact 'merely with a view to contradict him afterwards by calling 

another witness.'" Simpson v. Commonwealth, 13 Va. App. 604, 606, 

414 S.E.2d 407, 409 (1992) (citation omitted). "'The test as to 

whether a matter is material or collateral, in the matter of 

impeachment of a witness, is whether or not the cross-examining 

party would be entitled to prove it in support of his case.'" 

Williams v. Commonwealth, 16 Va. App. 928, 935, 434 S.E.2d 343, 

347 (1993) (quoting Allen v. Commonwealth, 122 Va. 834, 842, 94 

S.E. 783, 786 (1918)). 

 During cross-examination of Abbott, the Commonwealth 

undertook to discredit his claim that the shooting was accidental 

by proving that he was knowledgeable and familiar with the use and 

handling of firearms. Abbott testified that he had a "little" 

experience with firearms. He admitted that he had been in the 

Army and had been trained in the "basics" of firearm usage. He 

also acknowledged that he owned several firearms at the time of 

the shooting and that he was familiar with using all of them. 

Over Abbott's objection, the Commonwealth then tendered a 

photograph showing his gun collection. Abbott stated that the 

picture accurately depicted the collection. On re-direct 
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examination, Abbott pointed out that three of the weapons were BB 

guns. 

 The principle that prohibits a witness from being 

cross-examined and impeached on a collateral issue is not 

applicable here. Generally, evidence impeaching 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 vastness of Abbott's gun collection and his 

experience with the weapons was relevant to disprove a material 

issue that Abbott interjected into the case. The evidence that 

Abbott had an extensive gun collection and experience with 

firearms was not offered solely to impeach his prior testimony 

that he had a "little" experience with firearms but was offered to 

disprove his contention that the shooting was accidental. Proof 

that a person is familiar with and has had training in the use of 

firearms is a circumstance that a fact finder may consider in 

determining whether to believe a person's claim that he 

accidentally discharged a firearm which killed his spouse. We 

find that the trial court did not err by admitting the photograph 

and by allowing the Commonwealth to inquire about the gun 

collection. 
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D. Life Insurance Policy

 Abbott next contends that the trial court erred by admitting 

evidence that he was the beneficiary of the victim's $50,000 life 

insurance policy purchased three years before the shooting. 

Abbott argues that the evidence was remote and speculative and 

contained little probative value. 

 Whether an accused has 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 determining the accused's intent. 

1 Charles E. Friend, The Law of Evidence 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 
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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 existence of the policy. The fact that he 

disavowed a present knowledge of the policy or of the couple's 

dire financial situation goes to the weight of the evidence, not 

its admissibility. See generally Wise v. Commonwealth, 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 probative value of the evidence exceeded 

any prejudicial effect that may have resulted from its admission. 
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E. Prior Physical 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 
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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, 
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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.