COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Overton 

Argued at Richmond, Virginia 

JAMES BILLY HENRY 

 MEMORANDUM OPINION* BY 

v. Record No. 0520-96-4 JUDGE JAMES W. BENTON, JR. 

 JUNE 17, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WARREN COUNTY 

Dennis L. Hupp, Judge 

 Thomas D. Logie for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 James Billy Henry was convicted of threatening to burn a 

home in violation of Code § 18.2-83. On this appeal he raises 

the following nine issues: 

 1. Was the evidence sufficient as a matter of law to 

sustain the guilty verdict of the jury? 

 2. Was the evidence sufficient as a matter of law to prove 

that [Henry] uttered a threat containing his present 

intention to burn the trailer? 

 3. Was the evidence sufficient as a matter of law to prove 

that the complaining witness was actually put in fear 

that [Henry] would burn the trailer as a result of the 

alleged threat, and was any such fear reasonable, under 

the doctrine of Perkins v. Commonwealth, 12 Va. App. 7, 

402 S.E.2d 229 (1991)? 

 4. Should the trial [judge] have permitted the 

Commonwealth to introduce evidence in its case in chief 

that [Henry] had been convicted of misdemeanor offenses 

which did not involve moral turpitude which occurred 

after the alleged incident in this case? 

 

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

designated for publication. 
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 5. Assuming that the Commonwealth should have been 

permitted to introduce any evidence of subsequent 

criminal acts on the part of [Henry], should the 

Commonwealth have been permitted to introduce the 

verdicts of the General District Court? If so, should 

the Commonwealth have had to first establish the 

alleged incidents so as to expose its complaining 

witness to cross-examination concerning the alleged 

incidents? 

 6. In these circumstances, should the Commonwealth have 

been permitted to introduce any evidence at all 

concerning other alleged criminal acts against the 

complaining witness of which [Henry] had been accused? 

 If so, were some of the alleged incidents too far 

afield to be relevant or to have their probative value 

outweigh their prejudicial effect? 

 7. Should the [trial judge] have given a cautionary 

instruction to the jury concerning the limited use of 

the "other offenses" evidence in this case, assuming 

that such evidence was properly admitted in the first 

place? 

 8. Did the trial [judge] err in failing to find that the 

probative value of the evidence outweighs its 

prejudicial effect, or in the alternative did the 

[trial judge] err in making such a finding if in fact 

one was made? 

 9. Did the Commonwealth prove that the trailer which 

[Henry] was accused of threatening to burn was a 

"house" within . . . Code Section 18.2-83? 

 For the reasons that follow, we affirm the conviction. 

Facts

 Henry was indicted for threatening to burn Lisa Mathews' 

trailer home. The evidence at trial proved that Henry and 

Mathews were cousins. Mathews often drove Henry to places. In 

return, Henry gave her money for gas and other incidental 

expenditures. 

 Mathews testified that a dispute arose between them in 1994 
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when he asked her to lend him money and she refused. On November 

26, 1994, she received a telephone call from Henry. Henry asked 

Mathews if she had the money he needed for his court costs. When 

Mathews told Henry that she did not have money to give him, Henry 

stated, "either you get the money, or I'm going to burn your 

. . . house down, with you and the baby in it." He immediately 

hung up the phone. 

 Mathews testified that Henry's telephone call caused her to 

become "[s]cared, afraid, [and] frightened." She was afraid 

"[t]hat he was going to come and burn [her] house down, because 

[she] didn't have the money to give him." Mathews did not 

immediately report the threat. 

 Mathews testified that over the next several months, Henry 

threatened her, assaulted her, and damaged her vehicle. Between 

November and March, Mathews reported those other threats and 

obtained warrants for his arrest. Following those other threats, 

Mathews went to the magistrate on March 15, 1995 and reported 

Henry's threat to burn her residence. Mathews testified that she 

did not immediately report the threat to burn her house "because 

[she] didn't really feel, at the time, that he was going to do 

anything." 

 Henry testified and denied making the threat. He further 

testified that Mathews became hostile and sought to punish him 

because he stopped giving her money. 

 The jury convicted Henry of threatening to burn Mathews' 
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residence and recommended a sentence of twelve months in jail and 

a fine of $1,500. The trial judge imposed the jury's sentence. 

Other Crimes Evidence (Issues 4, 5, 6, 7, and 8)

 Over Henry's objection, the judge ruled that the prosecutor 

would be permitted to introduce redacted warrants showing Henry's 

convictions for offenses against Mathews between November 26, 

1994 and March 15, 1995. In addition, the judge ruled that Henry 

would be permitted to introduce evidence of the number and nature 

of the charges brought by Mathews against Henry and to prove the 

acquittals. 

 At trial, Mathews testified that although Henry threatened 

to burn down her trailer on November 26, 1994, she did not obtain 

the warrant for the threat to burn until March 15, 1995. She 

testified, however, that the threat frightened her. The 

Commonwealth introduced warrants showing that Henry was convicted 

of making obscene phone calls to Mathews on December 7, 1994 and 

February 22, 1995, of assault and battery against Mathews on 

December 9, 1994, and of damaging her vehicle on February 21, 

1995. Mathews testified that Henry's conduct after November 

enhanced her concern about his November threat to burn her 

trailer. Henry's counsel cross-examined Mathews as to the dates 

she went to the magistrate to obtain the several warrants. 

Henry's counsel introduced evidence that Henry was acquitted of 

some charges Mathews brought against him during that time period. 

 Generally, evidence of an accused's other bad acts is 
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inadmissible to prove that the accused committed the crime for 

which the accused is on trial. See Rodriguez v. Commonwealth, 

249 Va. 203, 206, 454 S.E.2d 725, 727 (1995). 

 Well established exceptions to the general 

rule of exclusion of other bad acts evidence 

apply where the evidence is relevant to show 

some element of the crime charged. To be 

admissible as an exception, evidence of other 

bad acts must be relevant to an issue or 

element in the present case. 

Morse v. Commonwealth, 17 Va. App. 627, 631, 440 S.E.2d 145, 148 

(1994). The other bad acts may have occurred either before or 

after the offense for which the accused is on trial. See

Stockton v. Commonwealth, 227 Va. 124, 142, 314 S.E.2d 371, 383 

(1984). 

 The relevance of other bad acts evidence to prove an issue 

or element must outweigh the inherent prejudice of proving that 

the accused has committed such other acts. See Lafon v. 

Commonwealth, 17 Va. App. 411, 418, 438 S.E.2d 279, 283 (1993). 

However, the principle is well established that the balancing of 

probative value and prejudice "is committed to the sound 

discretion of the trial judge and will not be overturned on 

appeal absent an abuse of discretion." Id. 

 The trial judge did not abuse his discretion in admitting 

the evidence of the other crimes. The evidence concerned events 

occurring within the weeks and months following Henry's threat to 

burn Mathews' house. The evidence of the other bad acts showed 

Henry's feelings toward Mathews and negated any suggestion that 
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his statements were hyperbole. The trial judge properly found 

that the evidence was relevant to show Henry's conduct and 

attitude toward Mathews. See Moore v. Commonwealth, 222 Va. 72, 

76, 278 S.E.2d 822, 824 (1981); see also Smith v. Commonwealth, 

239 Va. 243, 256, 389 S.E.2d 871, 878 (1990) (upholding the 

admission of evidence of other offenses when offered to prove 

premeditation, motive or intent, conduct and feelings of accused 

toward victim, and absence of accident or mistake). The evidence 

was also relevant to explain why Mathews delayed in reporting the 

incident. Mathews testified that the threat frightened her. The 

evidence of other crimes tended to prove that subsequent events 

intensified Mathews' fear over the original threat. Thus, the 

evidence was connected to the crime for which Henry was on trial 

and tended to prove facts in issue. See Scott v. Commonwealth, 

228 Va. 519, 527, 323 S.E.2d 572, 577 (1984). 

 Henry argues that the trial judge failed to find that the 

probative value of the evidence outweighed its prejudicial 

effect. Henry failed to raise this issue in the trial court. 

Therefore, he is barred from raising that issue now on appeal. 

See Rule 5A:18. 

 The trial judge also did not abuse his discretion by 

allowing the conviction to be proved through the general district 

court judgment orders. See Essex v. Commonwealth, 18 Va. App. 

168, 171, 442 S.E.2d 707, 709 (1994). Moreover, the trial judge 

allowed Henry to cross-examine Mathews about the number and 
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nature of the charges of the other crimes. Thus, Henry was 

allowed to prove acquittals. The trial judge's limitation on 

Henry's cross-examination on this issue was not an abuse of 

discretion. 

 In addition, Henry failed to raise an objection in the trial 

court that the judgments should not have been used because they 

were rendered by a court not of record. He may not raise that 

claim on appeal. See Rule 5A:18. 

 Furthermore, any possible error was harmless. The trial 

judge only allowed evidence of offenses that explicitly involved 

Mathews and only allowed redacted portions of the records, 

excluding any reference to the punishments. In addition, the 

trial judge allowed Henry to provide an explanation of the 

events. During Henry's testimony, his counsel admitted into 

evidence arrest warrants for other charges brought by Mathews 

against Henry in the past. 

 Finally, contrary to Henry's assertion that the trial judge 

refused to instruct the jury, the judge gave the following 

limiting instructions to the jury: 

 Instruction No. 6

 You have heard evidence concerning other 

incidents between Lisa Mathews and the 

Defendant. Some of these are the subject of 

the warrants which have been placed in 

evidence, and the Defendant was acquitted on 

some charges and convicted on others. You 

may consider these incidents as they may bear 

on the possible motives and bias on the part 

of Lisa Mathews, the Defendant, or both, and 

for no other purpose except as may be 

permitted under Instruction No. 8. 
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 Instruction No. 8

 You may consider evidence that the defendant 

was convicted of offenses against Lisa 

Mathews other than the offense for which he 

is on trial only as evidence of the 

defendant's conduct and feeling toward the 

victim and relations between them, in 

connection with the offense for which he is 

on trial and for no other purpose. 

 These instructions properly limited the jury's consideration 

of the other crimes evidence. Thus, the judge did not err in 

denying Henry's proposed Instruction A on the matter. See Joseph 

v. Commonwealth, 249 Va. 78, 90, 452 S.E.2d 862, 870 (stating 

that if principles set forth in a proposed instruction are "fully 

and fairly covered" in other granted instructions, the trial 

judge does not abuse discretion in refusing to grant the proposed 

instruction), cert. denied, 116 S. Ct. 204 (1995). 

The Trailer (Issue 9)

 Mathews testified that she was living in a "trailer . . . a 

mobile home." Mathews further testified that the trailer is 

"affixed to the ground" and that the trailer is "in the ground." 

 The evidence further proved that the trailer is 60 feet long and 

12 feet wide. 

 Henry testified that the trailer does not have running water 

and that the water runs off the gutter into a cistern. Henry 

made a motion to strike the evidence because "we do not have a 

building that is within the specific statute that's charged." 

The trial judge overruled the motion. 
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 Code § 18.2-83 requires that the threat to burn be directed 

toward "any place of assembly, building or other structure, or 

any means of transportation." It does not require that the 

threat to burn be directed toward a "house." The evidence proved 

that the trailer rested on cinder blocks, had walls, and was 

Mathews' place of dwelling. The evidence proved beyond a 

reasonable doubt that the trailer was a structure covered by the 

statute. Cf. Rooney v. Commonwealth, 16 Va. App. 738, 432 S.E.2d 

525 (1993). Accordingly, Henry's argument that the evidence was 

insufficient to convict him because the Commonwealth failed to 

prove that Mathews' trailer was a "house" is without merit. 

Sufficiency of the Evidence (Issues 1, 2, and 3)

 To establish the threat to burn under Code § 18.2-83, the 

Commonwealth was required to prove that Henry made and 

communicated to Mathews a "threat to bomb, burn, destroy or in 

any manner damage any place of assembly, building or other 

structure, or any means of transportation." 

 A threat, in the criminal context, is 

recognized to be a communication avowing an 

intent to injure another's person or 

property. The communication, taken in its 

particular context, must reasonably cause the 

receiver to believe that the speaker will act 

according to his expression of intent. 

Perkins v. Commonwealth, 12 Va. App. 7, 16, 402 S.E.2d 229, 234 

(1991). 

 "On appeal, we review the evidence in the light most 
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favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the 

evidence proved that when Mathews told Henry that she did not 

have money to give him, Henry responded, "either you get the 

money, or I'm going to burn your . . . house down, with you and 

the baby in it." Mathews testified that appellant's words 

frightened her. Mathews also testified that Henry's subsequent 

conduct lent credence to his earlier threat. Thus, she became 

motivated to obtain an arrest warrant for Henry's threat to burn 

her home. 

 Henry's warning was a communication that "reasonably 

cause[d] the receiver to believe" that he would act on his 

expression of intent. Perkins, 12 Va. App. at 16, 402 S.E.2d at 

234. The fact that Henry conditioned his threat upon Mathews' 

failure to give him money for court costs does not render his 

warning any less a threat. Code § 18.2-83 is not limited to 

unconditional threats. Even if it were, the evidence proved that 

Mathews told Henry that she did not have the money he needed; 

thus, Mathews had put herself within the terms of the condition. 

See Duncan v. Commonwealth, 2 Va. App. 717, 723-24, 347 S.E.2d 

539, 543 (1986). Therefore, the trial judge properly refused 

Henry's proposed Instruction B, which defined threat as a 

statement of an "unconditional intent to burn." 

 The evidence also proved that, although initially not 
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motivated to seek a warrant for Henry's arrest, Mathews 

ultimately did so because Henry's later conduct represented an 

escalation of Henry's hostility toward her. Indeed, Henry's 

subsequent conduct rendered reasonable Mathews' initial fear. 

 Accordingly, we affirm the conviction. 

 Affirmed.