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JANUARY 11, 2000

Record No. 1806-98-2




Present: Chief Judge Fitzpatrick, Judges
Coleman and Bray

Argued at Richmond, Virginia



James B. Wilkinson, Judge

Carolyn V. Grady (Epperly, Follis & Schork,
P.C., on brief), for appellant.

Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


Antonio Francis Buck, the appellant, was
convicted in a jury trial of two counts of first-degree murder,
in violation of Code ? 18.2-32, and two counts of use of a
firearm during the commission of a felony, in violation of Code
? 18.2-53.1. The sole issue on appeal is whether the trial
court erred by admitting evidence of other crimes and prior bad
acts. For the following reasons, we affirm the convictions.


The Richmond Police Department received an
emergency call that a shooting had occurred at a residence on
Calhoun Street. Detectives were dispatched to Annette Morris’
apartment. Upon arrival, the detectives found two homicide
victims, Annette Morris and Theresa Newton, lying on the floor
next to the front door. Evidence indicated that the front door
had been forcibly entered. The back door of the apartment was
barricaded from the inside with a chair. The apartment was not in
disarray, and there was no evidence that Morris had been robbed.

At trial, a forensic scientist testified that
Newton had been shot at point blank range and that Morris had
been shot twice at close range, approximately twenty-four inches
from the gun barrel. All three bullets were fired from the same
weapon. The forensic scientist also testified that the weapon was
most likely a .38 caliber firearm.

On the evening of the shooting, Morris’
nine-year-old son, Tyree Morris, was asleep upstairs. Tyree was
awakened suddenly and heard his mother, Annette Morris, and Buck
arguing. Tyree had known Buck for almost a year while Buck was
dating Tyree’s mother. Tyree heard his mother scream "don’t
shoot" a number of times, and then he heard a gunshot and
someone fall against a chair. Soon after hearing the gunshot,
Tyree went to the pay phone across the street and called 9-1-1.

At trial, the Commonwealth introduced, over the
defendant’s objection, several arrest warrants which had been
sworn out against Buck by Morris, charging him with assault and
battery of Morris, trespass, and pointing and brandishing a
firearm at Morris. Some of the warrants had been sworn out eight
months before Morris was shot.

A Richmond police officer testified that twelve
days before Morris was killed, he investigated a complaint by
Morris that Buck had assaulted her. The officer arrested Buck
nine days before Morris was killed and while being taken into
custody, Buck stated that Morris should not have taken out a
warrant for him, that "she was going to pay," and that
he was "going to get her." Another deputy testified
that while Buck was in custody on this charge, he was in a
"rage." The deputy overheard Buck on the telephone
stating that he was "going to kill [Morris], she didn’t have
to have me arrested, I’m going to kill her." The deputy
testified that she interceded and told Buck not to make threats,
but he persisted in stating that he would kill Morris for having
him arrested.

Morris’ brother testified that he saw Buck with
a .38 caliber handgun two months before his sister’s death.
Morris’ sister testified that during that same time period, she
witnessed Buck "grabbing" Morris and heard Buck
"threaten to kill Morris." Tyree Morris testified that
during the month before his mother’s death, he witnessed Buck
push her over a balcony and into a wall.


The question on appeal, as framed by appellant,
is whether the trial court erred by permitting the Commonwealth
to introduce irrelevant and prejudicial evidence in the form of
warrants charging unadjudicated crimes and witnesses’ testimony
about past unrelated acts of violence between Morris and Buck.
The issue, as we perceive it, is whether the evidence of prior
bad acts by Buck against Morris and the fact that Morris had Buck
arrested is sufficiently relevant to prove a material fact. In
order to be admissible under one of the exceptions to the rule
barring the admission of evidence of other crimes or prior bad
acts, the evidence must be relevant and the probative value of
the evidence must outweigh any incidental prejudice.

"’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.’" Crews v. Commonwealth, 18 Va. App. 115,
118, 442 S.E.2d 407, 409 (1994) (quoting Blain v. Commonwealth,
7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). "Evidence
which ‘tends to cast any light upon the subject of the inquiry’
is relevant." Cash v. Commonwealth, 5 Va. App.
506, 510, 364 S.E.2d 769, 771 (1988) (citation omitted). Evidence
which tends to prove a material fact is relevant and admissible,
"’unless excluded by a specific rule or policy
consideration.’" Evans v. Commonwealth, 14 Va. App.
118, 122, 415 S.E.2d 851, 853-54 (1992) (quoting Cash, 5
Va. App. at 510, 364 S.E.2d at 771).

Evidence that the accused committed crimes or
other bad acts is inadmissible if offered solely to prove the
accused committed or likely committed the crime charged. See
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d
802, 805 (1970). To infer that an accused probably committed the
charged offense because he or she has committed a similar offense
is unsound reasoning and, without other evidence making the proof
of a prior bad act or crime relevant to a material fact in the
case, such evidence is highly prejudicial and inadmissible.
"[Similar crimes evidence] merely show[s] that [an accused] has the propensity to commit the crime [charged] and this
inference has been held to be error because it reverses his
presumption of innocence." Spence v. Commonwealth, 12
Va. App. 1040, 1045, 407 S.E.2d 916, 918 (1991).


[t]he many exceptions to the rule are as well
established as the rule itself. Specifically, other crimes
evidence is admissible where it shows the conduct and feeling of
an accused toward his victim or establishes their prior
relationship; where it proves motive or opportunity to commit the
crime charged; where it proves an element of the crime charged;
where it proves intent or guilty knowledge on the part of the
accused . . . . Thus, in order to be admissible under
one of the exceptions, evidence of other crimes must tend to
prove a material fact and its probative value "must outweigh
the prejudice inherent in proving that an accused has committed
other crimes."

Rodriguez v. Commonwealth, 18 Va. App.
277, 280-81, 443 S.E.2d 419, 422 (1994) (en banc)
(citations omitted).

Here, the evidence that Morris had sworn out
warrants against Buck for assaults and trespasses allegedly
committed against her and the witnesses’ testimony concerning
prior bad acts committed by Buck against Morris were properly
admitted to show the nature of the relationship between the
accused and the victim and to prove that Buck harbored a motive
to harm or kill Morris. It is the fact that warrants had been
sworn out by Morris against Buck, irrespective of the allegations
in the warrants, that proved that a contentious and tumultuous
relationship existed between the two.

The fact that Morris had sworn out warrants
against Buck also proved that Buck had a motive and an intent to
kill or do harm to Morris. See Callahan v. Commonwealth,
8 Va. App. 135, 141-42, 379 S.E.2d 476, 480 (1989) (finding that
evidence of defendant’s threats and assaults on wife and children
were properly admitted to show the defendant’s relationship with
his victims, which proves motive and intent). Proof that an
accused has a motive to harm or kill a victim is admissible as
circumstantial evidence that the person committed the crime, see
Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d
229, 233-34, aff’d en banc, 17 Va. App. 248, 436 S.E.2d
193 (1993), and did so with a specific intent. See Robinson
v. Commonwealth
, 228 Va. 554, 557, 322 S.E.2d 841, 843
(1984). Thus, we hold that the evidence that Morris had Buck
arrested was relevant to prove motive and to show the nature of
the relationship between the accused and the victim. See Kelly
v. Commonwealth
, 8 Va. App. 359, 369-71, 382 S.E.2d 270,
275-77 (1989) (finding that evidence that defendant previously
assaulted and battered his wife and was subsequently arrested was
admissible to show a past course of violence by the defendant and
a motive for killing his wife).

In addition to the evidence that Morris had
Buck arrested on several occasions, on two occasions after Buck
had been arrested for allegedly assaulting Morris, he, in the
presence of two law enforcement officers, angrily expressed his
intention to kill Morris for having him arrested. See generally,
Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824
(1981) (noting that where motive is a relevant fact, evidence of
other offenses is admissible if it shows the conduct or attitude
of the accused toward his victim or establishes the relationship
between the parties). The evidence of specific threats by an
accused to harm or kill the victim is highly relevant to prove
motive and intent and is a circumstance that the fact finder may
consider in determining an accused’s guilt. Thus, the admission
of the specific threats Buck made after he was arrested, to kill
or harm Morris for having him arrested, was highly relevant to
prove motive. In addition, the specific instances of Buck
"grabbing" and "pushing" Morris and
threatening to kill her were also relevant to prove the nature of
the relationship between the parties and to prove motive.

Our inquiry does not end there, however. In
order for the relevant evidence of other crimes and prior bad
acts to be admissible, the legitimate probative value of the
evidence must exceed any incidental prejudice caused Buck. See
Guill v. Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489,
491-92 (1998). Buck contends that the prejudicial effect of the
evidence outweighed the probative value because the offenses
charged in the warrants included allegations of unadjudicated
crimes. His contention has no merit.

The evidence was not offered to prove the truth
of the charges or crimes allegedly committed by Buck; but rather,
the evidence was offered to show that Morris had him arrested,
which defined their relationship and caused him to threaten to
kill her. The trial court instructed the jury that the warrants
were not to be considered as proof of the charges in the warrants
or to prove that Buck had assaulted Morris in the past. Rather,
the warrants were offered and admitted to prove that over an
eight-month period Morris had Buck arrested on numerous occasions
and that the continuous arrests provided a motive for Buck to
kill Morris. The jury is presumed to have followed the trial
court’s limiting or cautionary instruction. See LeVasseur
v. Commonwealth
, 225 Va. 564, 589, 304 S.E.2d 644, 657

In summary, we find that the trial court’s
admission of the evidence of the warrants falls within an
exception to the rule barring the admission of evidence of prior
bad acts and that the trial judge did not err by finding that the
probative value of the testimony outweighed any prejudicial
effect. See Rodriguez, 18 Va. App. at 280-81, 443
S.E.2d at 422. The admission of the evidence was not an abuse of
discretion. We, therefore, affirm the judgment of the trial




[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for