COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons 

Argued at Salem, Virginia 

BENJAMIN SCOT ELLIOT, S/K/A 

 BENJAMIN SCOT ELLIOTT 

 OPINION BY 

v. Record No. 0995-98-3 JUDGE DONALD W. LEMONS 

 AUGUST 10, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF GILES COUNTY 

Colin R. Gibb, Judge 

 Max Jenkins (Jenkins & Jenkins, on brief), 

for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Benjamin Scot Elliott appeals his conviction by a jury of 

second degree murder and use of a firearm in the commission of 

murder. On appeal, he contends that the evidence was 

insufficient to support his convictions and that the trial 

court’s admission of hearsay evidence was reversible error. We 

disagree and affirm the convictions. 

I. BACKGROUND 

 On the afternoon of February 19, 1997 Elliott loaned his 

car to his girlfriend, Misty Dawn Dellinger, the victim. She 

was to have returned the car to Elliott by 6:30 that evening 

after running errands; however, she did not return until almost 

7:30 p.m. after spending the afternoon with her lesbian lover, 
Sarah Jackson. Elliott was aware of the relationship between 

Dellinger and Jackson and had expressed animosity towards 

Jackson. 

 Scott Minnock visited Elliott’s residence at approximately 

5:45 p.m. on the day of the murder. When Dellinger had not 

returned on time, Elliott repeatedly told Minnock that Dellinger 

was late. Minnock observed Elliott putting a shoulder holster 

on and off during this time. He also saw Elliott manipulating a 

pistol inside the holster and repeatedly drawing the weapon. 

When Dellinger arrived at the residence late, Minnock heard her 

tell Elliott that she had been with Jackson that afternoon. 

 Dellinger initially sat in the living room with Minnock but 

went into one of the back bedrooms alone with Elliott. She and 

Elliott returned to the living room. Dellinger sat in a chair 

and Elliott stood over her. Minnock remained seated watching 

television. Minnock stated that he “heard the gun go off,” 

looked up and saw Elliott holding a gun “pointed over towards 

[Dellinger’s] direction” a few feet from the victim. 

 Dellinger had fallen “onto the back of the couch.” The 

Deputy Chief Medical Examiner testified that she died as a 

result of a .44 caliber bullet which had entered her body 

through the chin in a “sharply downward” direction, proceeded 

into the chest, penetrated the thoracic aorta, and then 

penetrated and lodged in the liver. The path of the bullet was 

“downward at a sharp angle, and backward.” 

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 Elliott maintained that the shooting was an accident and 

offered the following explanation to Giles County Sheriff’s 

Investigator E.M. Blevins: 

I loaded the damn pistol like an idiot and I 

got in there and I tried the holster. I 

kept trying to put the holster on. I don’t 

know how to wear it. I kept getting it on 

wrong, the snap was underneath and 

everything and trying to unsnap it and, you 

know, I was playing with it and pulling it 

out. Well, I finally, I don’t know if I 

ever got it on right or not, but I tried it 

three or four different ways and I jerked 

the pistol out and when I did, when I jerked 

it forward, I don’t know if the shoulder, 

the, the holster jerked it, I don’t know 

what happened, but the damn gun went off. 

 Elliott claims he “didn’t pull the trigger back” and stated 

that the last word uttered by the victim before she was shot was 

“no.” 

 Richard Roberts, a firearms expert for the Division of 

Forensic Science, stated that he examined the murder weapon. It 

is a single-action revolver and in order to fire such a weapon, 

“you have to cock [the hammer] back and then pull the trigger.” 

Roberts explained that a safety feature of the weapon included a 

transfer bar that is engaged only when the trigger is pulled. 

If the trigger is not pulled, the transfer bar will not engage 

and the gun will not fire, even if the hammer is pulled back and 

released. Roberts said the gun was “in mechanical operating 

conditions with the safety features functioning properly.” The 

trigger pull required “approximately four and one-half pounds” 

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of pressure which was within “normal factory recommendations” 

and considered “safe.” Because “there was a question about the 

accidental shooting,” Roberts performed tests “trying to see if 

[he] could get it to accidentally fire and . . . be sure the 

transfer bar was working properly.” Roberts conceded that it 

was possible that the weapon could be cocked by catching it on 

the holster or clothing, but further testified that he examined 

the holster in question and found that the pistol went “in and 

out of the holster with no problem.” Roberts testified, without 

objection, that he “could not get it to go off accidentally.” 

He said that even if a person cocked the hammer back, the weapon 

would not fire “unless the trigger is pulled or pushed to the 

back real well.” 

 Michael Waldron testified that a few months before the 

fatal shooting, Dellinger visited his house but declined to stay 

overnight and told Waldron that Elliott had threatened to kill 

her if she tried to leave him. Additionally, Sarah Jackson 

testified that she was with Dellinger on the day she was fatally 

shot and that she told Dellinger not to be late because Elliott 

would be “mad at her” and that Dellinger said “she wanted to get 

a job and to get a car and she wanted to leave [Elliott] and she 

wanted me and her to move away together.” 

II. SUFFICIENCY OF THE EVIDENCE 

 Where the sufficiency of the evidence is an issue on 

appeal, an appellate court must view the evidence and all 

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reasonable inferences fairly deducible therefrom in the light 

most favorable to the Commonwealth. See Cheng v. Commonwealth, 

240 Va. 26, 42, 393 S.E.2d 599, 608 (1990) (citations omitted). 

 To establish the crime of second-degree murder, “the 

defendant must be shown to have wilfully [sic] or purposefully, 

rather than negligently, embarked upon a course of wrongful 

conduct likely to cause death or great bodily harm.” Essex v. 

Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 220 (1984). 

Whether a shooting is intentional or accidental is “a matter 

peculiarly within the province of a jury to determine.” Compton 

v. Commonwealth, 219 Va. 716, 731, 250 S.E.2d 749, 758 (1979). 

Every unlawful homicide is presumed to be murder in the second 

degree. See Painter v. Commonwealth, 210 Va. 360, 364, 171 

S.E.2d 166, 169 (1969). 

 Malice is the element that distinguishes murder from 

manslaughter. See Essex, 228 Va. at 280, 322 S.E.2d at 219-20. 

The trier of fact may infer malice from the deliberate use of a 

deadly weapon unless the evidence raises a reasonable doubt 

whether malice existed. See Morris v. Commonwealth, 17 Va. App. 

575, 578, 439 S.E.2d 867, 870 (1994). Killing with malice but 

without premeditation and deliberation is murder in the second 

degree. See Perricllia v. Commonwealth, 229 Va. 85, 91, 326 

S.E.2d 679, 683 (1985). 

 The fact finder believed the Commonwealth’s evidence, 

including its theory of the case, and rejected Elliott’s 

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evidence that the shooting was accidental. “The weight which 

should be given to evidence and whether the testimony of a 

witness is credible are questions which the fact finder must 

decide.” Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 

S.E.2d 598, 601 (1986). The Commonwealth’s evidence was 

competent, was not inherently incredible, and was sufficient to 

prove beyond a reasonable doubt that Elliott was guilty of 

second degree murder and use of a firearm in the commission of 

murder. 

III. HEARSAY 

 Elliott maintains that the trial judge erred by admitting 

hearsay statements of Michael Waldron and Sarah Jackson into 

evidence. Hearsay is “primarily testimony which consists [of] a 

narration by one person of matters told him by another.” 

Williams v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832 

(1958). However, “[i]f the declaration is offered solely to 

show that it was uttered, without regard to the truth or falsity 

of its content, the declaration is not excluded by the hearsay 

rule.” Speller v. Commonwealth, 2 Va. App. 437, 446, 345 S.E.2d 

542, 548 (1986) (citations omitted). Of course, hearsay 

evidence is admissible nonetheless if it falls within one of the 

recognized exceptions to the rule of exclusion. 

 One of the exceptions to the rule of exclusion of hearsay 

evidence is the “state-of-mind” exception. In order to be 

admissible, the evidence must be relevant, must refer to a 

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presently existing state of mind, and must have no obvious 

indication of fabrication or contrivance. Charles E. Friend, 

The Law of Evidence in Virginia § 18-16 (4th ed. 1993). 

 With regard to relevance of the declarations of a homicide 

victim we have said, 

[t]he state of mind of a homicide victim is 

relevant and material only in cases where 

the defense contends that the death was the 

result of suicide, accident, or 

self-defense. In those instances, the state 

of mind must have been communicated to the 

accused. 

* * * * * * * 

 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. 

Hanson v. Commonwealth, 14 Va. App. 173, 188-89, 416 S.E.2d 14, 

23 (1992) (citations omitted) (internal quotations omitted). 

 Elliott did not contend that Dellinger’s death involved 

self-defense or suicide; rather, he claimed her death was an 

accident. The Commonwealth contended that it was murder. 

Elliott testified that his relationship with Dellinger was 

“fabulous.” Elliott’s state of mind was a critical issue in the 

case. 

 The testimony of Michael Waldron that Dellinger told him 

that Elliott had threatened to kill her if she tried to leave 

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him is admissible under the state of mind exception to the rule 

of exclusion. In this instance the state of mind of the victim 

is relevant to prove the state of mind of the accused and the 

nature of their relationship. It is devoid of any obvious 

indication of fabrication or contrivance and the nexus to the 

defendant is obvious -- it relates a conversation between the 

defendant and victim which demonstrated the nature of their 

relationship and provided a motive for murder. 

 The testimony of Sarah Jackson that she told Dellinger that 

“she should go home because she had to be home at six thirty 

. . . and she didn’t need to be late, [Elliott] would get mad at 

her,” followed by Dellinger’s response “that she wanted to get a 

job and to get a car and she wanted to leave [Elliott] and she 

wanted me and her to move away together,” is also admissible 

under the state of mind exception to the rule of exclusion. 

Jackson’s recitation of what she said to Elliott is not offered 

for the truth of the matter stated; rather, it is offered to 

prove that her statement was made as a catalyst for Dellinger’s 

response. The relevance of Dellinger’s response depends upon 

nexus to the defendant. Dellinger’s response establishes her 

state of mind, namely, her intention to leave Elliott. The 

testimony of Michael Waldron proves Elliott’s state of mind in 

response to Dellinger’s intention to leave him. The testimony 

of Sarah Jackson is corroborative in nature. The nexus to the 

defendant is his prior threat to Dellinger relating to the 

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subject of any intent she may have to leave him. Also, the 

evidence rebuts Elliott’s characterization of the relationship 

as “fabulous” and provides a motive for murder. 

VI. CONCLUSION 

 Finding no error, we affirm Elliott’s convictions. 

Affirmed. 

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