COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Fulton and White

Argued at Fredericksburg, Virginia

NIGEL EMANUEL MCCAULEY

MEMORANDUM OPINION* BY

v. Record No. 0202-22-4 JUDGE JUNIUS P. FULTON, III

FEBRUARY 7, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

Kimberly A. Irving, Judge

Robert Bennett (Ashton, Walla & Associates, P.C., on briefs), for 

appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. 

Miyares, Attorney General, on briefs), for appellee.

Following a jury trial, the trial court convicted Nigel Emanuel McCauley of aggravated 

malicious wounding and using a firearm in the commission of a felony. The trial court also 

convicted McCauley, upon his guilty plea, of possessing a firearm after conviction of a felony. 

McCauley was sentenced to a total of fifty-eight years of imprisonment with forty-five years and 

eight months suspended. McCauley argues that the trial court erred in denying his motion to 

strike the aggravated malicious wounding and felonious use of a firearm charges because the 

evidence was insufficient to sustain them, granting the Commonwealth’s jury instruction on 

express and implied malice, and denying his proposed jury instruction on flight. McCauley also 

argues that the trial court erred in excluding “information” about, and statements made by, the 

victim to demonstrate that he was the aggressor and McCauley acted in self-defense. We cannot 

* Pursuant to Code 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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consider McCauley’s arguments concerning the sufficiency of the evidence and the jury 

instructions because he did not timely file, and thus make a part of the appellate record, a 

transcript which we find to be indispensable to the disposition of these issues. We further 

conclude that the trial court did not abuse its discretion in excluding McCauley’s proposed 

evidence regarding the victim, and affirm the judgment.

BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the 

light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. 

Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 

(2016)). In doing so, we discard any of McCauley’s conflicting evidence, and regard as true all 

credible evidence favorable to the Commonwealth and all inferences that may reasonably be 

drawn from that evidence. Id. at 473.

At about 8:00 a.m. on May 28, 2019, Howard Shaver, who lived in Apartment 1 at 8188 

Peakwood Court in Prince William County, invited Michael Richards for a drink at the 

apartment. At about 8:45 a.m., Shaver also invited McCauley, who lived with his mother in the 

apartment above, to join him for a drink. McCauley joined Shaver, Richards, and another man 

on Shaver’s balcony. 

The men conversed casually about motorcycles as they drank beer. McCauley “jumped 

into” the conversation with a comment about the “outrageous size” of motorcycle engines. 

Richards said McCauley was “stupid” because such motorcycles did not exist. McCauley asked 

Richards in an angry manner if he had “a problem with” McCauley. Richards said he had no 

problem, then went inside and sat at the dining room table. 
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At some point, Shaver and the other man went to the store for more beer. McCauley left 

without speaking to Richards. When Shaver returned to the apartment from the store, Richards 

was there alone. 

About five minutes later, McCauley knocked on Shaver’s door. After answering the 

door, Shaver told Richards that McCauley wanted to speak to him. Richards, who was unarmed,

walked out the door and saw McCauley walking away. McCauley then was about ten feet from 

Shaver’s front door. When McCauley turned around to face Richards, Richards saw a gun in 

McCauley’s hand. Shaver and Richards heard four gunshots. Richards, who was standing just 

outside the door, fell back into the apartment. Shaver asked McCauley why he had shot 

Richards, but McCauley said nothing, went to his car, and drove away. Shaver called 911 and 

went outside to wait for the police. 

In a nearby apartment, Matthew Schaffer, a Fairfax County police officer, was awakened 

by the sound of two gunshots. From his window, Officer Schaffer saw a maroon sedan driving 

out of the parking lot of the apartment complex. Officer Schaffer heard a neighbor screaming for 

help because someone had been shot. Schaffer dressed quickly, grabbed his gun, and went to 

help. Outside, Officer Schaffer encountered Shaver. Officer Schaffer went to Shaver’s 

apartment and found Richards in a pool of blood on the living room floor. Richards had been 

shot multiple times and injured in the groin, hip, and right arm. Officer Schaffer also called 911. 

Prince William County police officers found two cartridge casings on the concrete 

breezeway leading to Shaver’s apartment. Blood was smeared on the walls outside the 

apartment, and there was blood on the floor leading to the apartment door. 

The police arrested McCauley later that day and found a nine-millimeter handgun and a 

magazine in the trunk of his car. Three bullets remained in the magazine. Forensic testing 
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proved that the two cartridge casings found at the crime scene were fired from the gun retrieved 

from McCauley’s trunk. 

Testifying in his own behalf, McCauley said that he returned to the apartment complex at 

about 7:30 a.m. on May 28, 2019, after finishing his overnight shift at Walmart. He saw Shaver, 

Richards, and the other male at Shaver’s apartment. McCauley had known both Shaver and 

Richards for several years. At Shaver’s insistence, McCauley went to Shaver’s apartment and 

joined him and the others to drink beer. They talked about a barbecue that occurred at the 

apartment complex the previous night. During the conversation, Richards pulled out a knife to 

clean his fingernails.1 McCauley admitted that he left the apartment shortly after he arrived, 

went outside to his car, obtained his gun and a pack of “Black & Milds,” and returned to 

Shaver’s place. 

According to McCauley, Richards made two trips to the store that morning for more beer, 

returning the second time with someone named “Josh.” Shaver and Richards were drinking 

steadily. McCauley believed that Richards was becoming intoxicated and said Richards became 

“more aggressive” as they were talking in Shaver’s apartment. 

McCauley claimed that, as he was preparing to leave the apartment for good, Richards 

accused him of being in a gang. As McCauley was walking toward the door, Richards said, “I’ll 

have my cousin, Josh, kill you. In fact, I’ll do it myself.” McCauley claimed that Richards 

“charged” after him out the door and accused him of being in a rival gang. Richards had his 

hand in his pocket, and said he was going to kill McCauley. McCauley testified that he feared 

for his life. When Richards was within arm’s reach of him, McCauley pulled out his gun and 

fired it twice. McCauley testified that he was not trying to kill Richards but only wanted to 

protect himself from a knife attack. 

1 No knife was found on Richards’ person after the shooting. 
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As relevant to McCauley’s claim of self-defense, the trial court permitted McCauley to 

testify that Richards admitted he was a member of the Bloods gang and that McCauley had heard 

Richards bragging about stabbing his brother in 2017. However, the trial court excluded any 

testimony from McCauley that Richards had maintained that he was “untouchable” by the police 

so others should fear him, concluding that this evidence did not constitute “a prior act of violence 

that is contemplated within the law.” Also, testimony that in 2015 McCauley heard Richards’ 

girlfriend screaming that Richards had been violent toward her was also excluded as “too remote 

in time.” And McCauley’s testimony that he had known Richards to be “accosting” and 

“belligerent” when intoxicated was ruled inadmissible as failing to show a specific act of 

threatening behavior. 

The trial court convicted McCauley after the jury’s verdict. This appeal followed.

ANALYSIS

I. Sufficiency of the Evidence and Jury Instruction Claims

The trial court entered its order sentencing McCauley on February 7, 2022.2 Under Rule 

5A:8(a), a “transcript of any proceeding is a part of the record when it is filed in the office of the 

clerk of the trial court within 60 days after entry of the final judgment.” Thus, the transcripts in 

this case were due to be filed on or before April 8, 2022.

2 The trial court entered a nunc pro tunc order under Code § 8.01-428(B) to correct the 

clerical omission in the February 7, 2022 order to reflect that the trial court advised McCauley of 

his right to appeal and appointed appellate counsel for him at the sentencing hearing. When 

acting nunc pro tunc to correct a clerical order under Code § 8.01-428(B), “the court does not 

reacquire jurisdiction over the case. Rather, the trial court merely corrects the record by entry of 

an order nunc pro tunc, under the accepted fiction that the order relates back to the date of the 

original action of the court ‘now for then.’” Davis v. Mullins, 251 Va. 141, 149 (1996). In 

supplemental briefing, McCauley acknowledges this principle but argues that in the absence of 

any perceived prejudice that we find him in “substantial compliance” and exempt him from the 

Rules. We decline to do so.
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The transcript of the final day of McCauley’s jury trial on July 15, 2021, was filed late on 

April 14, 2022. McCauley did not obtain an extension of time to file the July 15, 2021 transcript. 

See Rule 5A:8(a). The timely filed transcripts do not contain argument on a motion to strike 

after McCauley presented his own evidence. Nor does the record contain a motion to set aside 

the verdict. See Commonwealth v. Bass, 292 Va. 19, 33 (2016) (holding that in a jury trial where 

a defendant introduces evidence of his own, he preserves his objections to the sufficiency of the 

evidence “in a motion to strike at the conclusion of all the evidence or a motion to set aside the 

verdict”). Further, the timely filed transcripts do not contain the argument regarding the jury 

instructions that were granted or refused.

Having reviewed the record and the parties’ briefs, we conclude that the July 15, 2021

transcript or written statement of facts is indispensable to a review of the sufficiency of the 

evidence, the claims McCauley raises regarding jury instructions, and a determination of whether 

these issues were properly preserved for appellate review under Rule 5A:18. See Smith v. 

Commonwealth, 32 Va. App. 766, 772 (2000); Turner v. Commonwealth, 2 Va. App. 96, 99-100 

(1986). McCauley failed to ensure that the record contains a transcript or written statement of 

facts necessary to permit us to resolve the assignments of error challenging the sufficiency of the 

evidence and the trial court’s rulings on jury instructions.

3

 Rule 5A:8(b)(4)(ii). Therefore, we 

may not consider these assignments of error. See id.

3 Copies of McCauley’s proposed jury instructions were filed with the trial court and 

properly made part of this Court’s record and McCauley urges us to consider whether the trial 

court erred in denying certain instructions based solely on the instructions themselves, without 

the benefit of the of the portion of the trial transcript where the jury instructions were argued and 

ruled upon. Because “[w]e review a trial court’s decisions in giving and denying requested jury 

instructions for abuse of discretion,” Conley v. Commonwealth, 74 Va. App. 658, 675 (2022), the 

portion of the transcript containing the objections and rulings is indispensable to our review.
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II. Evidence of “Information” about Richards and his Prior Statements

McCauley argues that the trial court erred in limiting his introduction of evidence to 

support his claim that he shot Richards in self-defense and that Richards was the aggressor. 

“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.” Wolfe v. Commonwealth, 

67 Va. App. 97, 106 (2016) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16 (1988)). “On 

appellate review of issues involving the admissibility of evidence, the Court views the evidence 

in the light most favorable to the Commonwealth as the party who prevailed below.” Haas v. 

Commonwealth, 71 Va. App. 1, 5 n.1 (2019), aff’d in part and vacated in part, 299 Va. 465 

(2021).

Evidence is relevant if it has “any tendency to make the existence of any fact in issue 

more probable or less probable than it would be without the evidence.” Va. R. Evid. 2:401. 

Generally, “[a]ll relevant evidence is admissible” unless provided otherwise by other rules. Va. 

R. Evid. 2:402. “The scope of relevant evidence in Virginia is quite broad, as ‘[e]very fact, 

however remote or insignificant, that tends to establish the probability or improbability of a fact 

in issue is relevant.’” Jones v. Commonwealth, 71 Va. App. 70, 88-89 (2019) (quoting 

Commonwealth v. Proffitt, 292 Va. 626, 634 (2016)). “Although character evidence of the 

victim is generally not admissible to show conduct in conformity with that trait on a particular 

occasion, ‘evidence of a pertinent character trait or acts of violence by the victim of the crime 

[may be] offered by an accused who has adduced evidence of self-defense.’” Id. at 89 (quoting 

Va. R. Evid. 2:404(a)(2)).

“[T]he ultimate issue becomes whether such evidence of prior conduct was sufficiently 

connected in time and circumstances . . . as to be likely to characterize the victim’s conduct 

toward the defendant.” Carter v. Commonwealth, 293 Va. 537, 546-47 (2017) (quoting Barnes 
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v. Commonwealth, 214 Va. 24, 25 (1973)). “Or stated alternatively, the test is whether the 

evidence of prior character is ‘so distant in time as to be void of real probative value in showing 

present character.’” Id. at 547 (quoting Barnes, 214 Va. at 25).

In this case, the trial court permitted McCauley to testify that Richards was a member of 

the Bloods gang and that Richards purportedly accused McCauley of being a member of a rival 

gang. These circumstances were relevant to support McCauley’s claim that he feared Richards 

meant to harm him on May 28, 2019. The trial court also permitted McCauley to explain that he 

feared Richards because he had stabbed his own brother in 2017. “It was well within the trial 

court’s discretion whether to admit or deny additional evidence of the victim’s prior violent 

conduct.” Id.

In contrast to the admitted evidence, the testimony that Richards said that he was 

“untouchable” in the eyes of the police was neither proof of a “pertinent character trait” nor an 

“act of violence” to warrant admission under Virginia Rule of Evidence 2:404(a)(2). Such a 

statement amounted to nothing more than a boast of inside connections with law enforcement

and had nothing to do with prior acts of violence. The same was true for defense counsel’s 

vague proffer that Richards behaved in an “accosting” or “belligerent” manner when drunk. 

McCauley provided the trial court with no facts tending to show that Richards had committed 

any specific act of violence and, thus, was likely the aggressor against McCauley.

In addition, we find no basis to conclude that McCauley’s testimony regarding hearing 

Richards’ girlfriend shouting about him in 2015 was in any way connected in time and 

circumstances as “likely to characterize” his conduct toward McCauley several years later. 

Carter, 293 Va. at 547. The girlfriend’s yelling about Richards’ conduct towards her in 2015 in 

no way demonstrated a propensity of aggression against McCauley in 2019. Thus, we do not 
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find that the trial court abused its discretion in limiting McCauley’s testimony concerning 

Richards or his prior statements.

CONCLUSION

For the foregoing reasons, we find that the trial court did not abuse its discretion in ruling 

inadmissible a portion of McCauley’s proffered testimony concerning Richards. Because

McCauley failed to timely file an indispensable transcript, the record is insufficient for this Court 

to consider the remaining assignments of error on appeal.4 Accordingly, we affirm the judgment.

 Affirmed.

4 Waiver of McCauley’s assignments of error pertaining to sufficiency of evidence and 

jury instructions is without prejudice to his right to seek a delayed appeal under Code 

§ 19.2-321.1(A)(iv) or file a petition for a writ of habeas corpus in the appropriate court.