COURT OF APPEALS OF VIRGINIA 

Present: Judge Benton, Senior Judge Cole and 

 Retired Judge Trabue*

Argued at Richmond, Virginia 

DANIEL THOMAS COX 

v. Record No. 2177-93-2 MEMORANDUM OPINION** BY 

 JUDGE MARVIN F. COLE 

COMMONWEALTH OF VIRGINIA MAY 9, 1995 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 J. Overton Harris (Hugh S. Campbell; Campbell, 

 Campbell, Herbert & Harris, P.C., on brief), for 

 appellant. 

 Kathleen B. Martin, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 On appeal from his convictions of first degree murder and 

use of a firearm in the commission of a felony, Daniel Thomas Cox 

contends that the trial judge erred in admitting evidence of a 

prior bad act. We hold that the evidence was properly admitted. 

 Therefore, we affirm. 

 On March 19, 1993, the appellant shot and killed his wife. 

At a pretrial hearing on his motion in limine, the appellant 

contested the Commonwealth's presentation of evidence of the 

appellant's prior bad acts involving incidents of previous 

marital difficulties between the appellant and the victim. The 

 

 *Retired Judge Kenneth E. Trabue took part in the 

consideration in this case by designation pursuant to Code 

§ 17-116.01. 

 **Pursuant to Code § 17-116.010, this opinion is not 

designated for publication. 
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trial judge overruled the motion, stating that the relationship 

between the victim and the appellant was relevant evidence. 

 At appellant's trial Erin Moran testified, over the 

appellant's objection, that eighteen months before the murder she 

and her companion spent an evening playing cards and other games 

with the appellant and the victim. Moran testified that the 

victim and the appellant "exchanged cross words." The appellant 

then pushed the victim, causing her to hit her head on the corner 

of the kitchen cabinet. The appellant and the victim "scuffled" 

until Moran and her companion ended the fight. 

 As a general rule, evidence that shows or tends to show 

crimes or other bad acts committed by the accused "is incompetent 

and inadmissible for the purpose of showing the commission of the 

particular crime charged." Kirkpatrick v. Commonwealth, 211 Va. 

269, 272, 176 S.E.2d 802, 805 (1970). But the exceptions to the 

general rule are as well established as the rule itself. Morton 

v. Commonwealth, 227 Va. 216, 222, 315 S.E.2d 224, 228, cert. 

denied, 469 U.S. 862 (1984). 

 In Sutphin v. Commonwealth, 1 Va. App. 241, 337 S.E.2d 897 

(1985), this Court enumerated the most common issues and elements 

for which evidence of prior crimes and bad acts are potentially 

relevant: 

 (1) to prove motive to commit the crime 

charged; (2) to establish guilty knowledge or 

to negate good faith; (3) to negate the 

possibility of mistake or accident; (4) to 

show the conduct and feeling of the accused 

toward his victim, or to establish their 

prior relations; (5) to prove opportunity; 
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(6) to prove identity of the accused as the 

one who committed the crime where the prior 

criminal acts are so distinctive as to 

indicate a modus operandi; or (7) to 

demonstrate a common scheme or plan where the 

other crime or crimes constitute a part of a 

general scheme of which the crime charged is 

a part. 

Id. at 245-46, 337 S.E.2d at 899. 

 Malice, motive, intent, and the relationship between the 

accused and the victim are relevant matters for the consideration 

of the jury in a murder trial. The trial judge specifically 

found that evidence of the prior relationship between the 

appellant and the victim was relevant evidence and admitted the 

evidence of the prior bad act for this purpose. Thus, the 

evidence was not admitted as tending to prove that the appellant 

killed the victim, "but for the purpose of showing the relations 

between the parties, their state of feeling and course of conduct 

towards each other, and as reflecting light upon the motive and 

intent with which the act was done." O'Boyle v. Commonwealth, 

100 Va. 785, 792, 40 S.E. 121, 123 (1901). See also Smith v. 

Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878, cert.

denied, 498 U.S. 881 (1990); Gibson v. Commonwealth, 216 Va. 412, 

415-16, 219 S.E.2d 845, 848 (1975), cert. denied, 425 U.S. 994 

(1976). The evidence also tended to prove that the killing was 

not accidental. 

 Moreover, the probative value of this evidence was not 

defeated by its remoteness in time from the crime charged. 

 [T]he test is whether the evidence of prior 

character is "so distant in time as to be 
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void of real probative value in showing 

present character." 

 . . . Once a nexus for relevancy of prior 

conduct or character has been established 

. . . 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. 

Lafon v. Commonwealth, 17 Va. App. 411, 419, 438 S.E.2d 279, 284 

(1993) (citations omitted). In this case, eighteen months was 

not sufficient to eradicate all probative value. Further, the 

trial judge correctly found that the fact that the incident 

occurred about eighteen months before the murder related only to 

the weight to be afforded the evidence, which was for the jury to 

determine. See O'Boyle, 100 Va. at 792, 40 S.E. at 123. 

Therefore, the trial judge did not abuse his discretion in 

admitting the evidence. 

 For the reasons stated, the judgment of the trial court is 

affirmed. 

 

Affirmed. 
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BENTON, J., dissenting. 

 Daniel Cox did not deny that he fired the gun that 

discharged the bullet that killed his wife. His defense to the 

murder indictment was that the bullet accidentally hit her. The 

physical evidence was consistent with Cox's defense. 

 The Commonwealth's forensic expert testified that the bullet 

fragment recovered from the body of Cox's wife was "consistent 

with that bullet having struck something before it went into the 

head." The forensic expert also testified that the irregular 

shaped entrance wound "confirms or . . . it supports the idea 

that the bullet has struck something prior to hitting [the 

body]." She testified that it was possible that the bullet 

struck a defect that she had examined in the kitchen floor, 

deflected at an angle of ricochet, and hit Cox's wife in the 

head. 

 In Cox's defense, Cox presented evidence from his own 

ballistic expert who similarly testified that the bullet had in 

fact ricocheted before hitting Cox's wife. The ballistic expert 

also testified that the defect on the floor could have been the 

point from which the bullet ricocheted. 

 Despite the physical evidence, the Commonwealth argued that 

evidence of an event of marital disharmony was relevant and 

admissible to prove that the bullet did not accidentally enter 

Cox's wife's head and cause her death. The trial judge agreed 

and allowed the Commonwealth to prove, over Cox's objection, that 
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Cox and his wife "scuffled" more than eighteen months prior to 

the death of Cox's wife. I disagree with the majority's holding 

that the evidence was admissible. 

 As a general rule, evidence that an accused has committed 

bad acts other than the offense for which the accused is being 

tried is inadmissible. Kirkpatrick v. Commonwealth, 211 Va. 269, 

272, 176 S.E.2d 802, 805 (1970). In addition, the following rule 

is well established: 

 Evidence which has no tendency to prove 

guilt, but only serves to prejudice an 

accused, should be excluded on the ground of 

lack of relevancy. For evidence to be 

admissible it must relate and be confined to 

the matters in issue and tend to prove an 

offense or be pertinent thereto. Evidence of 

collateral facts or those incapable of 

affording any reasonable presumption or 

inference on matters in issue, because too 

remote or irrelevant, cannot be accepted in 

evidence. 

Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 

(1967). 

 Evidence that proved Cox and his wife quarrelled and 

scuffled while drinking and playing cards one year and six months 

prior to the death of Cox's wife was not relevant to negate 

accident or to prove any element at Cox's murder trial. Other 

than an exchange of cross words, nothing is known about the 

nature or circumstances of that incident. "The fact that he had 

[pushed] her at some previous time without any evidence as to the 

circumstances or the character or effect of it, furnishes no 

proof that he willfully, deliberately and premeditatedly killed 
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her on this occasion." Williams v. Commonwealth, 203 Va. 837, 

840, 127 S.E.2d 423, 425-26 (1962). Furthermore, this prior 

event did not involve a gun and was not so "strikingly similar[]" 

as the events on the night of Cox's wife's death. Lafon v. 

Commonwealth, 17 Va. App. 411, 418, 438 S.E.2d 279, 284 (1993). 

It bore no nexus to the incident for which Cox was being tried. 

Nothing about the earlier event had any tendency to prove whether 

the bullet from the gun was deliberately or accidentally 

discharged. 

 Moreover, even if one assumes that factual relevance had 

been established, the trial judge was required to exclude 

evidence of a prior bad act when "the expanse of time has truly 

obliterated all probative value." Id. at 419, 438 S.E.2d at 284. 

 Thus, to be admissible, the prior event must be "'sufficiently 

connected in time and circumstances with the homicide as to be 

likely to characterize'" Cox's conduct toward his wife in order 

to be admissible. Id. (citation omitted). In this case, an 

incident whereby a married couple "exchanged cross words" over 

eighteen months prior to the death of one of the parties is 

simply too remote in time to have any probative value regarding 

the deliberate or accidental nature of the shooting. 

 The evidence tended only to prove to the jury that Cox had a 

"propensity [for violence and] tend[ed] to reverse his 

presumption of innocence." Lewis v. Commonwealth, 225 Va. 497, 

502, 303 S.E.2d 890, 893 (1983). "The only purpose it could 
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serve, and the only effect it would have, was to prejudice [Cox] 

in the minds of the jury." Williams, 203 Va. at 840, 127 S.E.2d 

at 426. 

 I would hold, therefore, that the trial judge erred in 

admitting the evidence. Thus, I would reverse the conviction.