COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judge Elder and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

KENNETH LAMONT BRAXTON 

 OPINION BY 

v. Record No. 1344-96-4 JUDGE LARRY G. ELDER 

 DECEMBER 16, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

William D. Hamblen, Judge 

 Robert F. Horan, III (Ronald Wayne Fahy; 

Horan & Fisher, on briefs), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Kenneth Lamont Braxton ("appellant") appeals his convictions 

of first degree murder and petit larceny. He contends the trial 

court erred when it (1) admitted as an "excited utterance" the 

hearsay statement of the victim's three-year-old son ("child") 

and (2) ruled that the child's statement and evidence regarding 

his condition following the discovery of the victim's body were 

relevant. For the reasons that follow, we affirm. 

 I. 

 FACTS 

 In early 1995, Lorann Cox ("victim") was working as an 

undercover drug informant for the Manassas City Police 

Department. On February 3, 1995, she executed a controlled buy 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 
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of cocaine from appellant. On June 3, the Manassas police 

obtained a warrant for appellant's arrest based upon the 

information provided by the victim. This warrant was executed on 

June 7 and a preliminary hearing was scheduled for July 6. A 

subpoena was issued ordering the victim to appear and testify at 

the preliminary hearing. 

 On June 30, appellant was riding in a car near the victim's 

home with his second cousin, Yolanda Skinner. Appellant told 

Skinner "about some charge that [the victim] had on him" and 

stated that "he would kill [the victim], if he could." Appellant 

pointed out the victim's house to Skinner and said, "that's where 

the bitch lives." During this conversation, appellant asked 

Skinner if she knew where he could obtain a gun. Skinner replied 

that she did not know anybody who had a gun. 

 On the evening of July 2, the victim and her three year old 

visited her parents at their home. The victim's father noticed 

that the child's "nose [was] running" and made arrangements with 

the victim to care for the child the following day. The victim's 

father and the victim, who worked for the same employer but at 

different times of the day, arranged to meet at the end of the 

father's shift so that the father could take the child home and 

care for him while the victim worked. After making these 

arrangements, the victim left her parents' house around 

10:30 p.m. to return home for the evening. 

 The next day, July 3, the victim did not meet her father at 
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the appointed time. The victim's father attempted to contact her 

by phone and by pager, but the victim did not respond. The 

victim's father then drove to the victim's house and arrived 

there at about 2:35 p.m. He tried the front door, discovered 

that it was unlocked, and walked into the victim's house. After 

searching for six or seven minutes, he discovered his daughter's 

body lying face down behind a love seat in the living room. He 

also found the child, who was unharmed, next to the victim's 

body. The victim's father picked up the child and removed him 

from the scene. Four minutes later, the victim's father used a 

phone in a neighboring house to call "911" and then the victim's 

brother. 

 Both an ambulance and the police arrived at the scene a 

short while later. The victim's house was secured, and 

investigators collected evidence from the scene. A metal cooking 

pot with a large dent in it was found a few feet from the 

victim's body. A plastic container that dispensed body lotion 

was found next to the victim's sink. A bloody fingerprint 

matching appellant's right index finger was found on top of the 

dispenser's pumping mechanism. A DNA analysis of the blood in 

which the fingerprint was formed indicated a high probability 

that it was the victim's. 

 An autopsy of the victim revealed that she was stabbed 

nineteen times in the neck with a sharp object. The medical 

examiner also found "a number of bruises about the [victim's] 
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body and face" and a swollen area on the back of her head that 

were consistent with "a blow to the head with a large object such 

as a pot." The victim's death was attributed to the stab wounds 

to her neck, which caused "profuse bleeding." 

 Ronald Wortmann, an inmate in the Prince William County 

Adult Detention Center, informed authorities that appellant 

confessed to him that he murdered the victim. Wortmann later 

testified that he asked appellant "what he was in here for" and 

appellant told him that he had been charged with the victim's 

murder. Appellant then told Wortmann that "[he] did the bitch." 

 Appellant told Wortmann he had learned that the victim was 

working undercover for the Manassas City Police Department by 

following her when she met with officers at the police 

department. When Wortmann asked him why he had murdered the 

victim, appellant responded, "she was going to tell on all of 

us." Appellant also told Wortmann that "a baby" was at the scene 

when he murdered the victim. 

 Appellant was charged with the capital murder and robbery of 

the victim. A jury convicted him of first degree murder and 

petit larceny. 

 The scope of this appeal is limited to the admissibility of 

an out-of-court statement made by the child after he was 

discovered at the crime scene and the evidence regarding his 

condition during this time. The following is a summary of the 

contested evidence. 
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 At trial, the victim's father testified that when he found 

the child next to the victim's body, "it looked like [the child] 

had been sleeping across her body . . . ." After he picked up 

the child and carried him out of the house, the victim's father 

noticed that "[the child] had dried mucous down the front of his 

nose from the cold" and that he was wearing "the same diaper that 

he had on the night before." He also noticed that the child was 

wearing a t-shirt that had "some blood on it" and that the child 

"had kind of a glazed look in his eyes" and "was in a dazed 

state." Appellant objected to all of this evidence on the ground 

that it was not relevant, and the trial court overruled his 

objections. 

 Later in the trial, the victim's brother testified that the 

victim's father gave the child to him outside the victim's home. 

 The victim's brother testified that he spoke with a police 

officer for about five minutes and then took the child to his 

home "to get him away from everything." The victim's brother 

noticed that the child "was not himself" and that he "was in 

shock, kind of dazed." The victim's brother also observed blood 

on the child's shirt and identified in court the blood-stained 

shirt that the child had been wearing. The victim's brother 

testified that his wife washed the shirt before delivering it to 

the police. Appellant's counsel objected to all of this evidence 

on the ground that it was irrelevant, and the trial court again 

overruled his objections. 
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 The victim's sister-in-law testified that, on July 3, the 

victim's brother brought the child to their house from the crime 

scene. She testified that the child "was quiet [and] subdued" 

and that "there was some blood on his shirt." She testified that 

she removed the blood-stained shirt from the child and eventually 

washed it. Appellant's counsel objected to all of this evidence 

on the ground that it was not relevant. The trial court 

overruled his objections. The victim's sister-in-law also 

testified that the child made statements about the victim "every 

ten to fifteen minutes." 

 Kathleen Burch testified that she arrived at the residence 

of the victim's sister-in-law on July 3 after the child was 

already there. She testified that the child indicated to her 

that he wanted to "go out and play" and that she took him 

outside. When asked to describe the child's "demeanor and 

appearance," Burch testified that the child "was very quiet and 

just dazed." Appellant's counsel did not object to this 

testimony. 

 The Commonwealth then indicated to the trial court that it 

intended to offer a statement that the child made to Burch while 

the two were outside. The trial court heard arguments regarding 

the admissibility of this statement outside the presence of the 

jury. The Commonwealth proffered that Burch would testify that 

"the child unsolicited told her the man -- hit[ing] his head like 

this (indicating) -- Mommy on the head." Appellant's counsel 
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argued that the statement was inadmissible on three grounds: 

(1) it was hearsay not within the excited utterance exception; 

(2) it was cumulative of other evidence already admitted; and 

(3) it was irrelevant. 

 The trial court ruled that the child's statement was 

relevant. It reasoned that the statement was probative of "how 

that contusion came to be on [the victim's] head" and of "the 

gender of the person who struck her." The trial court then ruled 

that the statement, although hearsay, fell within the excited 

utterance exception to the hearsay rule. It reasoned: 

 The age of the child, I think, is a 

substantial factor. And the evidence in this 

case establishes at least this. That while 

it's not clear what period of time elapsed 

between the time that [the victim] was 

injured or killed until the time he saw [the 

victim's father], the evidence does establish 

fairly clearly that from the time [the 

victim's father] came and picked him up out 

of there he was passed off in quick 

succession from [the victim's father] to [the 

victim's brother] . . . to [the victim's 

sister-in-law] and then to [Burch], and that 

he was variously described as quiet, dazed, 

those sorts of things, which is to say . . . 

in my view that [the child was] under the 

influence of the events still . . . . 

 Burch then testified that the child told her "[t]hat man 

(indicating) mommy on the head." The record established that 

Burch placed her hand to her head "in a striking manner." 

 Later in the trial, Officer S. C. Newsome of the Prince 

William County Police Department testified that, on March 6, 

1996, the victim's sister-in-law gave him the blood-stained shirt 
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worn by the child on July 3, 1995. He identified the shirt in 

court, and the Commonwealth offered the shirt into evidence. 

Appellant's counsel objected to the admission of the shirt "on a 

relevance basis," and the trial court overruled his objection. 
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 II. 

 EXCITED UTTERANCE 

 Appellant contends the trial court erred when it concluded 

that the child's hearsay statement to Burch fell within the 

"excited utterance" exception to the hearsay rule. We disagree. 

 "As a general rule, hearsay evidence is incompetent and 

inadmissible," and "[t]he party seeking to rely upon an exception 

to the hearsay rule has the burden of establishing 

admissibility." Neal v. Commonwealth, 15 Va. App. 416, 420-21, 

425 S.E.2d 521, 524 (1992). 

 A statement comes within the excited 

utterance exception to the hearsay rule and 

is admissible to prove the truth of the 

matter stated, when the statement is 

spontaneous and impulsive, thus guaranteeing 

its reliability. "There is no fixed rule by 

which the question whether the statement is 

admissible as an excited utterance can be 

decided. Resolution of the issue depends 

upon the circumstances of each case." 

 The statement must be prompted by a 

startling event and be made at such time and 

under such circumstances as to preclude the 

presumption that it was made as the result of 

deliberation. In addition, the declarant 

must have firsthand knowledge of the 

startling event. The decision whether the 

statement qualifies as an excited utterance 

lies within the discretion of the trial 

court. 

Goins v. Commonwealth, 251 Va. 442, 460, 470 S.E.2d 114, 126, 

cert. denied, U.S. , 117 S. Ct. 222, 136 L.Ed.2d 154 

(1996) (citations omitted). 

 Whether a hearsay statement is an excited utterance is not 

determined solely by the lapse of time between the "startling 
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event" and the declaration. See Doe v. Thomas, 227 Va. 466, 

471-72, 318 S.E.2d 382, 385 (1984). Instead, the lapse of time 

is but one circumstance to consider when determining whether the 

declarant's statement was "'prompted by a startling event, and 

not the product of premeditation, reflection, or design.'" See

Martin v. Commonwealth, 4 Va. App. 438, 441, 358 S.E.2d 415, 417 

(1987) (citation omitted). "[I]n the case of statements made by 

young children, the element of trustworthiness underscoring the 

spontaneous and excited utterance exception finds its source 

primarily in the child's lack of capacity to fabricate such a 

story rather than the lack of time to fabricate." Walker v. 

Commonwealth, 19 Va. App. 768, 773, 454 S.E.2d 737, 740 (1995) 

(citing Martin, 4 Va. App. at 445, 358 S.E.2d at 418). 

 We hold that the trial court did not abuse its discretion 

when it admitted the child's out-of-court statement to Burch 

under the excited utterance exception to the hearsay rule. The 

child's age, the evidence of his condition from the time he was 

discovered at the crime scene until he made his statement, and 

the circumstances of the making of the statement support the 

trial court's conclusion that the child was speaking 

spontaneously in response to a startling event of which he had 

firsthand knowledge. The child was only three years old on the 

date of the victim's murder. The evidence indicates that the 

child observed the attack on his mother and was in her presence 

as she subsequently bled to death. The child was alone with his 
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mother's body from the time of the attack until the victim's 

father found him around 2:35 p.m. on July 3. The child's shirt 

was stained with blood. The child was passed from the victim's 

father to the victim's brother to the victim's sister-in-law to 

Burch in relatively quick succession. All of these persons 

testified that the child appeared "in shock," "quiet," and 

"dazed." The record indicates that the child made his statement 

to Burch within an hour of being discovered by the victim's 

father and that his statement was unsolicited. Although the 

record does not establish how much time elapsed between the 

victim's murder and the child's statement to Burch, the child's 

limited capacity to fabricate and the evidence that he remained 

visibly distressed to each person who handled him indicates that 

his statement was sufficiently reliable to be admitted as an 

excited utterance. 

 II. 

 RELEVANCE 

 Appellant contends the trial court erred when it concluded 

that the child's statement and the evidence regarding his 

condition after the victim's body was discovered were relevant. 

He specifically challenges the admissibility of the child's 

statement, the evidence that he was wearing a blood-stained shirt 

and an unchanged diaper, and the evidence that he had dried 

mucous around his nose and was in a dazed state.1

 He argues that 

 1Appellant also challenges the admissibility of a portion of 

Ronald Wortmann's testimony. At trial, Ronald Wortmann testified 
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the prejudicial effect of this evidence outweighed its probative 

value. We disagree. 

 "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." Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). 

"Evidence is admissible if it is both relevant and material." 

Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 

441 (1987). "Evidence is relevant if it has any logical 

tendency, however slight, to establish a fact at issue in the 

case." Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 

675, 678 (1993). "'Upon finding that certain evidence is 

relevant, the trial court is then required to employ a balancing 

test to determine whether the prejudicial effect of the evidence 

sought to be admitted is greater than its probative value.'" Id.

(quoting Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 

197, 203 (1988)). On appeal, a trial judge's ruling that any 

relevant evidence outweighs any incidental prejudice will be 

reversed only on a clear showing of an abuse of discretion. See

Ferrell v. Commonwealth, 11 Va. App. 380, 390, 399 S.E.2d 614, 

620 (1990). 

 

that appellant stated that he saw the child when he murdered the 

victim and that he contemplated killing the child. Appellant 

contends that this testimony was also irrelevant and erroneously 

admitted into evidence. However, appellant failed to raise this 

issue in his petition for appeal. Rule 5A:12(c) bars us from 

considering the merits of this argument. 
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 We hold that the trial court did not abuse its discretion 

when it concluded that the evidence challenged by appellant was 

relevant and that the prejudice did not outweigh its probative 

value. The child's statement was relevant to the identity of the 

murderer and the causation of the victim's injuries. The child's 

statement provided the only direct evidence in the record 

regarding the gender of the victim's assailant. In addition, the 

child's statement that he saw a man strike his mother on the head 

tended to establish that the contusion on the victim's head was 

caused by a blow from her assailant rather than from striking the 

ground when she fell to the floor. 

 The evidence regarding the child's condition after he was 

discovered at the crime scene by the victim's father was relevant 

to the trustworthiness of his out-of-court statement to Burch. 

Although the child's statement passed the threshold test of 

admissibility as an excited utterance, the ultimate credibility 

and weight of this statement were questions for the jury. See

Litchford v. Hancock, 232 Va. 496, 499, 352 S.E.2d 335, 337 

(1987). Evidence that tends to establish the credibility of a 

witness or the reliability of evidence is relevant and 

admissible. The evidence regarding the mucous on the child's 

face and the fact that he was wearing "the diaper that he had on 

the night before" tended to prove the length of time between the 

"startling event" he observed and his statement. The evidence 

that he was wearing a blood-stained shirt and that he appeared 
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dazed was relevant to prove that he was still under the influence 

of witnessing his mother's murder at the time of his statement. 

Furthermore, based on our review of the record, we cannot say the 

trial court abused its discretion when it concluded that the 

incidental prejudicial effect did not outweigh the probative 

value of the child's statement and the evidence regarding his 

condition. 

 For the foregoing reasons, we affirm the convictions of 

first degree murder and petit larceny. 

 Affirmed.