COURT OF APPEALS OF VIRGINIA
Present: Judges Pe tty, O’Brien and AtLee Argued at Lexington, Virginia

CORDELL LIONEL CARTER MEMORANDUM OPINION * BY v. Record No. 2261-14-3 J UDGE MARY GRACE O’BRIEN MAY 31, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF AMHERST COUNTY J. Michael Gamble, Judge Joseph A. Sanzone (Sanzone and Baker L.L.P., on brief), for appellant. Susan Baumgartner, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.
A jury convicted Corde ll Lionel Carter (“appellant”) of fi rst-degree murder, in violation of Code § 18.2-32, and use of a fi rearm in the commission of a homicide, in violation of Code § 18.2-53.1. After th e jury trial, the parties s tipulated to the evidence in a subsequent bench trial for possession of a firearm by a convicted felon, in vi olation of Code § 18.2-30 8.2. Appellant was also convicted of that charge. Appellant was sentenced to fifty-three years of incarceration in the state penitentiary, with three years suspended for first-de gree murder; five years of incarceration with two years suspended for use of a firearm in the commissi on of a felony; and four years of incarceration with two years suspended for possessi on of a firearm by a convicte d felon. Appellant asserts the follow ing assignments of error:
I. The trial court erred by refusi ng to allow the defendant to introduce evidence that the decedent thr eatened to kill the defendant hours before the shoo ting in this ca se when the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - defendant contended that he acted in self-defense as the decedent pulled a gun on the defend ant to initiate the inci dent that resulted in the shooting that resulted in the decedent’s death.
II. The trial court erred in not admi tting evidence of prior acts of violence of the decedent Jennif er Johnson prio r to 2012, and involving a 2013 incident wher e the decedent broke her mother Jessie Monaghan’s jaw after threatening to kill her, as this evidence is proof of the violen t and turbulent nature of the decedent in a case wh ere the defendant alleged the decedent was the aggressor.
III. The trial court erred by not granting the defe ndant’s motion to set aside the verdict, and grant a mistrial, since Sonny Showalter in his proffer [sic] testimony, which was made during jury deliberation, admitted giving fals e testimony regarding material evidence during the tria l and therefore the jury verdict was based, in part, on fa lse testimony.
I. BACKGROUND Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite onl y those facts and incidents of the proceedings as are necessary to the parties’ understandi ng of the disposition of this appeal. On the afternoon of January 14, 2014, the victim, Jennifer Johnson, was at home with her fourteen and seven-year-old sons. Appellant, with whom the victim had an off-and-on romantic relationship, came to the victim’s house and went into her bedroom where she was resting. From the living room, her fourteen-year-old son heard appellant and the victim “arguing and bickering back and forth.” He then heard “s omething hit the floor . . . like, a boom or something dropped.” A few seconds later, appell ant walked out of the bedroom, made a comment to the ch ildren about an ambulance, and left the residence. Appellant wa s only in the victim’s bedroom for two to five minutes. After appellant left, her son went into his mother’s bedroom, where he found her on the floor, shaking and speaking in “gibberish.” He lo oked for his mother’s cel l phone to call for help,- 3 - but appellant had taken it. The victim’s son ran to Sonny Showalter’s hous e about fifty yards away, and called 911. The police arrive d eight minutes later, but the vi ctim had died in the interim. The police did not find any weap ons at the house, but they di d find a .38 shell casing on the bedroom floor. The bullet had g one through a bedroom window an d struck a post on the front porch. The police determined that when the victim was shot, she was standing in front of her bedroom window, directly across fr om the doorway to the room, at an angle facing toward the right side of the room. The police conc luded that the bullet traveled “f acing toward[] her at the same direction,” and then went through the window at an angle. Dr. Amy Tharp, an assistant chief medical examiner, testified that the victim died from a single bullet wound to her chest th at punctured her aorta and lungs and severed her spinal cord. According to Dr. Tharp, the injury caused rapi d blood loss and paraly zed Johnson immediately from the waist down. There were no defensive wounds found on th e victim’s body, and no visible soot or burns on her hands from the gunshot. The doctor concluded that the victim was shot from “an intermediate range . . . within a few feet.” At trial, appellant te stified that on the day of the shooting, he went to Johnson’s house to bring her money. He said that her son answered the door and let him in. The vi ctim came out to the living room and was “hollering and screaming,” so appellant and the victim went into the bedroom. Appellant testified that he gave Johnson $500, but she wa nted $1,000. Accord ing to appellant, the victim threatened to k ill him and “reached like sh e had the gun.” Appellant said he then “hit her hand and her hand went up” and he heard a “pop” and the victim fell agai nst the wall. Appellant also testified that he “tried to kn ock [the gun] out of her hand.” Hesaid that Johnson fell against the wall and was “standing there” when he left. He did not see any blood and did not think anything was wrong with her. He testified that he believed she was just “acting out.”- 4 - The jury found appellant guilty of first-de gree murder and use of a firearm in the commission of a homicide. Appe llant moved to set asid e the verdict as cont rary to the law and evidence. His motion was denied , and this appe al followed.
II. ANALYSIS A. Assignment of Error I: Evidence of Victim’s Threat to Kill Appellant Appellant asserts that the trial court erred in refusing to allow him to introduce evidence that hours before the shooting occurred, the victim ma de a threat to Jesse Monaghan, the victim’s mother, that she was going to kill appellant. He cont ends that the threat was admissible to show that the victim was the initial aggres sor and he was acting in self-d efense when he shot her. “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). A trial court abuses its discretion “when a relevant factor that sh ould have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weig ht; and when all proper factors, and no improper ones, are consider ed, but the court, in weighing those factors, commits a cl ear error of judgment.” Lawlor v. Commonwealth, 285 Va. 187, 213, 738 S.E.2d847, 861 (2013) (quoting Landrum v. Chippenham & Johnston-W illis Hosps., Inc., 282 Va. 346, 35 2, 717 S.E.2d 134, 137 (2011)). 1. Factual Background During the jury trial, at the conclusion of the Commonwealth’s case, Monaghan was taken to the hospital with ches t pains. Before presenting any eviden ce, appellant requested a continuance because he had planned to call Monaghan as a witn ess. Appellant proffered that Monaghan would testify that on the night before the shooting, the vi ctim told her that Monaghan should “move her- 5 - things . . . and find herself an other n****r because this one wasn ’t going to be around long.” 1 Appellant asserted that the victim’s statement to Monaghan was a thr eat against him and was admissible to prove that he acted in self-defense when he shot her. The court denied his motion to continue the case. Appellant does not assign erro r to the court’s failure to grant the continuance. During the defense case, appellant testified in support of his th eory of self-defense. He did not, however, renew his proffer of Monaghan’s anticipated testimony. While the jury was deliberating, the court allowed appe llant to make a second proffer regarding the same statement by the victim. 2. Analysis At the time appellant initially made the proffer of Monaghan ’s testimony, in the context of his motion to con tinue, the Commonwealth ha d concluded its case. The defense had not yet presented any evidence regarding an overt act by the victim that would justify appellant shooting her in self-defense. 2 Accordingly, at the time of the firs t proffer, the trial court did not err in excluding the evidence because it was not relevant. See Cani pe v. Commonwealth, 25 Va. App. 629, 640-41, 491 S.E.2d 747, 752 (19 97) (holding that evidence rega rding the victim’s character for violence or aggression is only admissible after a proper foundation is laid by proof of an overt act justifying such defense); see also Commonwealth v. Cary, 271 Va. 87, 102, 623 S.E.2d 906, 914 (2006).

1 Appellant was not present when the victim made this allegedly th reatening statement, and he was unaware that she made the statement. While the trial court ruled that the statement was not admissible because the threat was not co mmunicated to appellant, we do not reach that issue on the merits because we find that the evid ence was not relevant at the time it was offered. See Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (“[A]n appellate court decides cases ‘on the best and narrowest gro und available.’” (quoting Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring))).

2 The only evidence presented at trial releva nt to appellant’s se lf-defense claim was appellant’s own testimony.- 6 - In Cary, 271 Va. at 102, 623 S.E.2d at 914, the defendant asserted a claim of self-defense. She attempted to adduce evidence concerning the victim’s prior thr eats and acts of violence against her. Id. However, at the time the defendant offered the evidence, the defendant had not yet testified about any overt act sufficiently im minent to support a claim of se lf-defense. Id. The Virginia Supreme Court held that the tria l court correctly excluded the pr offered evidence because of the timing of the proffer: before the defendant c ould offer testimony of pr ior threats made by the victim, she was required to present evidence “to es tablish the overt act nece ssary for a claim of self-defense.” Id. Likewise, in the case before us, appellant pro ffered evidence of the a lleged threat made by the victim before he had presente d any evidence in support of his claim of self-defense. Evidence of a threat against him was therefor e premature at the time it was o ffered, and the tr ial court did not err in excluding the evidence at that time. Further, although appellant’s testimony later in the trial arguab ly put the issue of self-defense before the jury, appellant failed to renew the proffer of Monaghan’s testimony before the jury retired to deliberate. Accordingly, the second proffer was not timely and appellant did not properly preserve the issue for ap peal under Rule 5A:18. See Jo nes v. Commonwealth, 50 Va. App. 437, 445, 650 S.E.2d859, 863 (2007) (statin g that “post-trial motions regarding admission of evidence generally are not timely”); see also Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002) (to satisfy Rule 5A:18, “an objection must be made . . . at a point in the proceeding when the trial court is in a positi on, not only to consider the asserted error, but also to rectify the effect of the asserted error”). B. Assignment of Error II: Prio r Acts of Violence by the Victim Appellant contends that the tr ial court erred when it limited the admissib ility of evidence of the victim’s prior acts of violence. According to appellant, the cha llenged evidence was proof of the- 7 - victim’s “violent and turbulent nature” and was relevant to his claim that she was the initial aggressor and that he was defending himself when he shot her. “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 abus e of discretion.” Blai n, 7 Va. App. at 16, 371 S.E.2d at 842. Th e Supreme Court has held that when a de fendant alleges he acted in self-defense, the number of precise acts of violen ce committed by the victim is a matter within the sound discretion of the trial cour t. Rasnake v. Commonwealth, 135 Va. 677, 697- 700, 115 S.E. 543, 549-51 (1923). 1. Factual Background During his testimony, appellant attempted to introduce evidence that the victim had assaulted both him and other people in the past. He offered this testim ony in support of his contention that the victim was th e aggressor and he was acting in se lf-defense when he shot her. The court allowed appellant to testify to all acts of viol ence that the victim committed against him between 2012 and the date of her death, and also permitted him to testify as to acts of violence that he observed the victim commit agai nst Sonny Showalter from 2012 until the victim’s death. However, the court exclud ed evidence that the victim was arrested for stabbing a man ten years earlier and that the victim hit appellant sometime in 2008 or 2009. The court also excluded evidence that appellant “knew” that th e victim broke Monaghan’s jaw in 2013. 2. Analysis Self-defense is an affirmative defense. When a defendant clai ms he was acting in self-defense, he bears the burden of producing evidence of “justifi cation or excuse that raises a reasonable doubt in the minds of the jurors.” McGhee v. Commonwealth , 219 Va. 560, 562, 248 S.E.2d 808, 810 (19 78). Generally, “[e]vidence of a person ’s character or character trait is not admissible for the purpose of prov ing action in conformity therewith on a partic ular occasion.” Va.- 8 - R. Evid. 2:404(a). However, when a defendant asserts a claim of self-defense, proof of specific acts of violence by the victim is admissible to “sho w the character of the vi ctim for turbulence and violence, [because] . . . such ev idence bears upon the questions of who was the aggr essor or what was the reasonable apprehen sion of the defendant fo r his safety.” McMinn v. Rounds, 267 Va. 277, 281, 591 S.E.2d 694, 697 (2004) (citations omitted). This evidence is not admissible until a defendant has presented evidence of an overt act by a victim that justifies his claim of self-defense. Cary, 271 Va. at 102, 623 S.E.2d at 914. See also Burford v. Co mmonwealth, 179 Va. 752, 767, 20 S.E.2d 509, 515 (1942). Evidence of the victim’s propen sity for violence is relevant to establish the initial aggressor and whether the defendant reason ably feared for his safety. Workman v. Commonwealth, 272 Va. 633, 649, 636 S.E.2d368, 377 (2006). Indetermining the initial aggressor, the victim’s prior acts of violence toward third persons may be admissible in certain circumstan ces. The violent acts must be sufficiently connected to the crime in time, place, and circumstance “as to likely characterize the victim’s conduct toward the defe ndant.” Id. (quoting Mc Minn, 267 Va. at 281, 591 S.E.2d at 697). In Randolph v. Commonwealth, 190 Va. 256, 265-66 , 56 S.E.2d 226, 230-31 (1949), the Supreme Court held that evidence that a victim previously threaten ed an acquaintance with a pistol was irrelevant in a case where th e defendant claimed he shot the vi ctim in self-def ense while the victim was robbing him. The issu e in that case was not the victim ’s propensity for violence but the credibility of the defendant’s allega tion that he was bein g robbed when he shot the victim. Id. However, in Barnes v. Commonw ealth, 214 Va. 24, 26, 197 S.E.2d 189, 190-91 (197 3), the Court found that the trial court erred in excluding all evidence of the vict im’s aggressive tendencies after he had been drinking. The defense established that at the time of the offens e, the victim had a blood alcohol level of .21. Id. at 25, 197 S.E.2d at 190. Th e proffered evidence demo nstrated that in the past, the victim became assaultive when he was int oxicated. Id. The Court found that the evidence- 9 - was admissible to support the de fendant’s contention that he kill ed the victim in self-defense, because there was a nexus between the victim’s be havior when intoxicated and the self-defense claim. Id. at 26, 197 S.E.2d at 190-91. In the case before us, the tria l court did not exclude all of th e testimony regard ing prior acts of violence by the victim , but rather gave a time limitation. Appellant was permitt ed to testify to multiple incidences of vi olence committed by the victim between 2012 and when she was killed in 2014, including acts of violence ag ainst appellant and Showalter. The court excluded evidence that the victim hit appellant sometime in 2008 or 2009, wh ich was remote in time from her death. Likewise, evidence that the victim stabbed a man was remote in both time and circumstance. Appellant admitted that the stabbi ng took place ten years earlier an d was a result of the victim’s belief that she was defending her sister. Further, testimony that appellant “knew about” the victim breaking her mother’s jaw in 20 13 was related to a fa mily dispute and appellant was not present when it occurred. The law does not requir e the trial court to allo w appellant to introduce evidence of every act of violence committed by a victim. “[T]he number of specific ac ts of violence of the deceased or victim which might be introduced [is] a matter wi thin the sound discretion of the trial court.” Burford, 179 Va. at 767, 20 S.E.2d at 515. Accordingly, we fi nd that the court did not abuse its discretion in limiting testimony regarding the victim’s prior acts of violence. C. Assignment of Error III: Motion to Set Aside the Verdict Appellant argues that the trial co urt erred when it refused to se t aside the jury ’s verdict as contrary to the law and evidence, because of the false testimony of Sonny Showalter. 3

3 Appellant also assigns error to the trial co urt’s failure to grant a mistrial. However, appellant never moved for a mistrial, he only asked for the court to set aside the jury’s verdict.- 10 - 1. Standard of Review A trial judge may only set aside a jury verdict if it is plai nly wrong or without credible evidence to support it. Wagoner v. Commonwealth, 63 Va. App. 229, 245-46, 756 S.E.2d 165, 173-74 (2014); see also Code § 8.01-680. 2. Factual Background Appellant called Sonny Showalter to testify at trial and unsuccessfull y attempted to have him declared an adverse witness. Showalter subsequently testified during the defense case that he did not know whether the victim had a gun. Later, while the jury was de liberating, appellant called Sh owalter to testify again, for purposes of a proffer. At that time, Showalter st ated that his earlier testimony was untrue and he knew that the victim had a gun. Following Showalter’s testimony, ap pellant’s counsel told the court that he was not asking the court to change any previous rulings. Afte r the jury return ed its verdict, appellant made a motion to set aside the verdict based on Show alter’s false testimony. The court denied appellant’s motion. 3. Analysis Citing Powell v. Commonwealth , 133 Va. 741, 112 S. E. 657 (1922), appellant argues that the court erred in failing to set aside the verdict and order a new trial. Appellant ’s reliance on Powell is misplaced. In Powell, the Commonwealth ’s witness admitte d that he testif ied falsely at trial and the Supreme Court held on appeal that it could not fairlyconclude that th e jury would reach the same verdict without th e perjured testimony. Id. at 756-58, 112 S.E. at 662. The Court held that the trial court must order a new trial if the perjured testimony went to a mate rial issue in the case or if the verdict was based principally on the false testimony. Id. at 75 4, 112 S.E. at 661. In the present case, it is signifi cant that appellant himself calle d Showalter to testify and then claimed that he was prejudiced byhis own witness’ test imony. “No litigant, ev en a defendant in a- 11 - criminal case, will be permitted to approbate and re probate – to invite error . . . and then to take advantage of the situation created by his own wrong.” Manns v. Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwea lth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988)). Further, a ppellant assumes that Showalter’s testimony while the jury was deliberating was truthful; howeve r, no other evidence indicates wh ether Showalter was telling the truth the first or the second time that he testified. See Powell, 133 Va. at 756, 112 S.E. at 661 (when a witness recants his trial te stimony, a new trial is only warranted if “the c ourt has evidence before it which establishes the . . . perjury or mistake, in such a clear and convincing manner as to leave no room for doubt”). Finally, Showalter’s testimony was not material to the ultimate finding of guilt by the jury: he was not present when the homicide occurred. He had no personal know ledge of what happened during the actual shooting, and his te stimony was only relevant to appellant’s theory of self-defense. The evidence in this case was sufficient to support th e jury’s verdict, and we find that the court did not err in refusing to set aside the verdict.
III. CONCLUSION For the foregoing reasons, the decisi on of the trial court is affirmed. Affirmed.