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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia
TIMOTHY WAYNE ABBOTT
MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
JANUARY 18, 2000
Record No. 1887-98-3
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Mark T. Williams (Williams, Morrison, Light &
Moreau, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
Timothy Wayne Abbott was convicted following a jury trial of
first-degree murder of his wife, Melissa Abbott, in violation of
Code § 18.2-32, and use of a firearm in the commission of a felony
in violation of Code § 18.2-53.1.
On appeal, Abbott argues that
the trial court erred by admitting:
(1) testimony from the
victim's friend that the victim had stated that she was afraid of
Abbott; (2) a tape recording of a telephone conversation between
Abbott and an unidentified woman; (3) evidence of Abbott's
firearms collection; (4) evidence that Abbott was the beneficiary
of the victim's life insurance policy; and (5) evidence that
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Abbott previously struck the victim.
For the reasons that follow,
we affirm the convictions.
Viewed in the light most favorable to the Commonwealth, the
evidence established that on February 8, 1997, at approximately
8:00 p.m., the victim was shot and killed by a single gunshot
wound as she returned home from work.
Ronald Burch, the Abbotts'
neighbor, testified that shortly after 8:00 p.m., Timothy Wayne
Abbott came to Burch's house and pounded on his door.
described Abbott as hysterical.
Unable to understand what Abbott
was mumbling, Burch followed Abbott to his home where Burch
observed that the front door had been shattered and a purse and
firearm were lying on the porch.
Burch found Abbott inside the
residence, slumped by the bed in the master bedroom.
Burch if he had called 911.
Abbott stated that he had shot his
Burch quickly dialed 911 and waited for the authorities to
When the authorities arrived, the victim was found lying to
the right of Abbott's pick-up truck which was parked in the
Abbott was lying over the victim's body, crying.
victim's keys were in the front door of the residence and the lock
A bullet casing was found 4'7" from the front wall
of the residence, and a bullet was found in the front yard.
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At trial Abbott testified that he loved his wife dearly and
that they were devoted to one another.
Abbott testified that he
kept a gun with him at all times for protection.
The gun was
always in immediate reach, loaded, and with the safety off.
stated that when he was not traveling as part of his employment as
a truck driver, he kept the gun in the house for protection.
Abbott testified that his house had been broken into on one
occasion, and on a separate occasion, a "peeping tom" had been
seen near the house.
On the day of the shooting, Abbott arrived home at
approximately 7:00 p.m. and fell asleep on the daybed in the
He testified that he was awakened by a loud noise.
"[P]anic stricken," Abbott noticed that the front door was open.
Abbott testified that the next thing he remembered was that "the
gun was in his hand and that it had just been fired."
the person he shot move away from the front door, so he proceeded
onto the porch.
At that point, he realized that he had shot his
Abbott testified that he first called 911, then went to his
neighbor's house and asked him to call for help.
returned from his neighbor's house, his wife's body was lying in
the driveway by the pick-up truck.
When asked about a life insurance policy and their financial
situation, Abbott testified that he was unaware that his wife had
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a life insurance policy and of any financial problems they may
have been having.
He stated that he was not involved in paying
the bills or in any aspect of the household finances.
The assistant chief medical examiner testified that the
victim died from a single gunshot wound to the chest, just left of
The bullet passed through the chest cavity from right to
left, causing internal injuries and bleeding.
examiner testified that the entrance and exit wounds were
A forensic scientist testified that Abbott held the
firearm approximately eighteen to thirty-six inches away from the
victim when he fired the weapon and that at least five and
one-half pounds of pressure were required to pull the trigger.
The Commonwealth also introduced the evidence of a friend of
the victim who testified that Abbott struck the victim two weeks
before the shooting, that he repeatedly called her derogatory
names, and that he criticized her about her appearance.
friend of the victim testified over objection that the victim had
told her she was afraid of Abbott.
In addition, the Commonwealth
introduced an audio recording of a telephone conversation that
Abbott had with an unidentified female in which Abbott made
derogatory remarks about his wife and discussed coming to the
woman's house "for a drink" and to "watch t.v. in her bedroom."
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"'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.'"
Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)
"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).
tends to prove a material fact is relevant and admissible, unless
excluded by a specific rule or policy consideration."
Commonwealth, 14 Va. App. 118, 122, 415 S.E.2d 851, 853-54 (1992).
A fact is material if it tends to prove an element of an offense
Johnson v. Commonwealth, 2 Va. App. 598, 601, 347
S.E.2d 163, 165 (1986).
"Every fact, however remote or
insignificant, that tends to establish the probability or
improbability of a fact in issue, is admissible."
Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982)
Victim's Prior Statement of Fear
Abbott argues that the trial court erred in admitting Patty
Lacks' testimony that the victim, one month prior to the shooting,
stated that she was afraid of Abbott.
Abbott argues that the
statement was not admissible under the state-of-mind exception to
the hearsay rule because the Commonwealth failed to show that the
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statement was material, relevant, and otherwise reliable.
Further, he argues that there was no evidence that the victim's
state of mind was ever communicated to him.
"'"Hearsay evidence is testimony in court . . . of a
statement made out of court [that is] offered as an assertion to
show the truth of matters asserted therein, and thus resting for
its value upon the credibility of the out-of-court asserter."'"
Taylor v. Commonwealth, 28 Va. App. 1, 9, 502 S.E.2d 113, 117
(1998) (en banc) (citations omitted).
If, however, the statement is admitted to
prove some other extraneous fact, such as
that the statement was in fact made, the
state of mind of the declarant, or notice or
knowledge, then the statement is not hearsay
and will be admissible if relevant and not
otherwise violative of another rule of
Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22
(1992) (citing Evans-Smith v. Commonwealth, 5 Va. App. 188, 197,
361 S.E.2d 436, 441 (1987)).
The state of mind of a homicide
victim may be relevant and material where the defendant contends
that the death was the result of suicide, accident, or
See Hanson, 14 Va. App. at 188, 416 S.E.2d at 23.
For the state of mind of the victim to be
relevant to prove the state of mind of the
accused, some nexus must exist which
inferentially implicates the accused, such
as by showing "previous threats made by the
defendant towards the victim, narrations of
past incidents of violence on the part of
the defendant or general verbalizations of
fear of the defendant."
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Id. at 188-89, 416 S.E.2d at 23 (citation omitted).
Thus, as we
noted in Hanson, the victim's state of mind may be relevant to
prove the defendant's state of mind where it has been
communicated to the defendant.
However, the relevance of the
victim's state of mind may also be established by showing some
other nexus "which inferentially implicates the accused."
Accordingly, the Commonwealth is not limited to establishing
relevance by proving that a victim's statements were
communicated to the defendant, if the statement showing the
victim's state of mind is shown to reflect the defendant's state
of mind or relationship with the victim by other independent
See id.; cf. Elliot v. Commonwealth, 30 Va. App. 430,
517 S.E.2d 271 (1999).
But see Clay v. Commonwealth, 30 Va.
App. 650, 519 S.E.2d 393 (1999) (rehearing en banc pending).
At trial, Lacks testified that approximately one month before
the shooting, she heard the victim state that she was afraid of
Over objection, the trial court admitted the testimony,
finding that it was relevant to prove the victim's state of mind,
which tended to prove the nature of the marital relationship.
Abbott testified that the victim's death was an accident,
rather than an intentional act by him, and that their marriage
was "a very good one."
Abbott's state of mind was a critical
issue in the case in that it was relevant and material to
whether the shooting was accidental.
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See Elliot, 30 Va. App. at
438, 517 S.E.2d at 275.
The victim's state of mind was relevant
to prove the nature of the marital relationship which, in turn,
was probative of Abbott's state of mind and whether he harbored
a motive and intent to kill his wife.
See Compton v.
Commonwealth, 219 Va. 716, 729, 250 S.E.2d 749, 757 (1979)
(evidence of prior relations existing between accused and victim
relevant to issue of whether death was accidental).
victim's statement that she feared her husband occurred within
one month of the shooting.
The statement and circumstances
under which it was made do not suggest fabrication and
The evidence of the victim's fearful state of mind
was also corroborated by the Commonwealth's evidence that Abbott
had struck the victim within two weeks of the shooting and that
he often called her derogatory names and "ordered the victim
Therefore, the victim's state of mind was relevant and
See Hanson, 14 Va. App. at 188-89, 416 S.E.2d at
Answering Machine Tape
Abbott argues that the trial court erred by admitting a tape
recording of a telephone conversation which suggested that Abbott
was engaged in an extramarital affair.
Abbott, relying on Brown
v. Commonwealth, 3 Va. App. 182, 348 S.E.2d 849 (1986), argues
that the tape recording, which failed to identify the female
participant or when the conversation occurred, was inadmissible
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because the conversation was simply too speculative and
"[I]n a prosecution for the murder of one's spouse the
Commonwealth generally may introduce evidence of marital
infidelity and may offer relevant evidence to show marital
disharmony or to rebut evidence of marital bliss."
App. at 185, 348 S.E.2d at 851.
Brown, 3 Va.
During cross-examination, the
Commonwealth was permitted, over objection, to introduce portions
of an answering machine tape recording that was recovered by the
victim's stepmother three to four weeks after the shooting.
the taped conversation, an unidentified woman invited Abbott to
her home to have drinks and watch television in her bedroom.
the tape, Abbott described the victim in angry terms, using
Abbott admitted that the male voice "sounded like" him
but testified that he did not recall the conversation and could
not identify the speakers.
The Commonwealth proffered the tape recording to rebut
Abbott's assertion that he was devoted to his wife and that they
had a "very good," stable marriage.
The evidence was relevant
to prove the relationship in the recent past between Abbott and
Moreover, Abbott's reliance on Brown is misplaced.
Brown, the defendant maintained that his wife was killed by an
Evidence was introduced that the defendant had given
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gifts to two women four to eight years prior to the wife's
murder and that the defendant had photographed one of the women.
There was no direct evidence of a sexual relationship between
the defendant and either of the women.
circumstances, we concluded that the
innocuous and inclusive nature of the
evidence combined with the lapse of four to
eight years between these incidents and the
murder of [the victim] do not afford any
"reasonable presumption or inference on
matters in issue" and fail to provide a
logical and natural connection to [the
3 Va. App. at 186, 348 S.E.2d at 852.
Here, the evidence was
recent and relevant to establish the nature of the marital
relationship and to rebut Abbott's testimony of marital bliss.
The evidence was not remote; rather, the victim's stepmother
testified that she recovered the tape from the answering machine
a couple of weeks after the shooting.
Thus, the evidence was
probative of Abbott's motive.
Abbott's Familiarity With Firearms
Next, Abbott argues that the trial court erred by allowing
the Commonwealth to elicit evidence regarding his gun collection
and by admitting into evidence a photograph of the collection.
Abbott contends that the trial court's rulings improperly allowed
the Commonwealth to impeach him by introducing extrinsic evidence
on a collateral issue.
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"A witness may not be cross-examined regarding any fact
irrelevant to the issues on trial when that cross-examination is
for the mere purpose of impeaching his credit by contradicting him
. . . [nor] may [he] be asked about any collateral independent
fact 'merely with a view to contradict him afterwards by calling
Simpson v. Commonwealth, 13 Va. App. 604, 606,
414 S.E.2d 407, 409 (1992) (citation omitted).
"'The test as to
whether a matter is material or collateral, in the matter of
impeachment of a witness, is whether or not the cross-examining
party would be entitled to prove it in support of his case.'"
Williams v. Commonwealth, 16 Va. App. 928, 935, 434 S.E.2d 343,
347 (1993) (quoting Allen v. Commonwealth, 122 Va. 834, 842, 94
S.E. 783, 786 (1918)).
During cross-examination of Abbott, the Commonwealth
undertook to discredit his claim that the shooting was accidental
by proving that he was knowledgeable and familiar with the use and
handling of firearms.
Abbott testified that he had a "little"
experience with firearms.
He admitted that he had been in the
Army and had been trained in the "basics" of firearm usage.
also acknowledged that he owned several firearms at the time of
the shooting and that he was familiar with using all of them.
Over Abbott's objection, the Commonwealth then tendered a
photograph showing his gun collection.
Abbott stated that the
picture accurately depicted the collection.
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examination, Abbott pointed out that three of the weapons were BB
The principle that prohibits a witness from being
cross-examined and impeached on a collateral issue is not
Generally, evidence impeaching a witness on a
collateral issue is irrelevant or of such little probative value
that admitting it would confuse the fact finder or divert the fact
finder's attention from the relevant issues.
Here, the evidence
regarding the vastness of Abbott's gun collection and his
experience with the weapons was relevant to disprove a material
issue that Abbott interjected into the case.
The evidence that
Abbott had an extensive gun collection and experience with
firearms was not offered solely to impeach his prior testimony
that he had a "little" experience with firearms but was offered to
disprove his contention that the shooting was accidental.
that a person is familiar with and has had training in the use of
firearms is a circumstance that a fact finder may consider in
determining whether to believe a person's claim that he
accidentally discharged a firearm which killed his spouse.
find that the trial court did not err by admitting the photograph
and by allowing the Commonwealth to inquire about the gun
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Life Insurance Policy
Abbott next contends that the trial court erred by admitting
evidence that he was the beneficiary of the victim's $50,000 life
insurance policy purchased three years before the shooting.
Abbott argues that the evidence was remote and speculative and
contained little probative value.
Whether an accused has knowledge of a fact or situation when
he behaves in a certain way or has a motive to behave in a certain
way may be relevant in determining the accused's intent.
1 Charles E. Friend, The Law of Evidence in Virginia § 12-6 (4th
"[b]efore a fact or circumstance is
admissible in evidence against a party to
show motive, such fact or circumstance must
be shown to have probably been known to him,
otherwise it could not have influenced him,
for a man cannot be influenced or moved to
act by a fact or circumstance of which he is
Robinson v. Commonwealth, 228 Va. 554, 558, 322 S.E.2d 841, 843
(1984) (quoting Mullins v. Commonwealth, 113 Va. 787, 789-90, 75
S.E. 193, 195 (1912)).
Although the Commonwealth sought to introduce evidence that
Abbott was experiencing financial difficulties, Abbott disavowed
any knowledge of the couple's financial problems, stating that
the victim had control over the household finances.
Abbott testified that even though he was initially aware that he
was the beneficiary of the victim's life insurance policy, he
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had forgotten about the policy until recently.
points out that no evidence shows he had tried to collect on the
In fact, the evidence proves a claim was filed by the
victim's father, who was the administrator of the victim's
Evidence of the life insurance policy was relevant to the
issue of whether Abbott had a motive for killing his wife.
Mullis v. Commonwealth, 3 Va. App. 564, 574, 351 S.E.2d 919, 925
(1987) (recognizing that defendant's knowledge that victim owned
life insurance policy naming defendant as beneficiary was
relevant to show motive).
Even though Abbott testified that he
had recently forgotten about the life insurance policy, he had
knowledge of the existence of the policy.
The fact that he
disavowed a present knowledge of the policy or of the couple's
dire financial situation goes to the weight of the evidence, not
See generally Wise v. Commonwealth, 6 Va. App.
178, 188, 367 S.E.2d 197, 203 (1988); see also Duncan v.
Commonwealth, 2 Va. App. 717, 723-25, 347 S.E.2d 539, 543-44
We find no abuse of discretion in the trial court's
determination that the probative value of the evidence exceeded
any prejudicial effect that may have resulted from its admission.
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Prior Physical Abuse
Last, Abbott argues that the trial court's admission of
evidence that he previously had struck his wife was improper
Evidence that an accused committed crimes or other bad acts
is inadmissible when offered 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).
"[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
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 or negates good faith or
the possibility of mistake or accident;
where it proves the identity of the accused
as the one who committed the crime charged
by showing criminal acts so distinct as to
indicate a modus operandi; and where it
demonstrates a common scheme or plan of
which the crime charged is part. 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
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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).
Joyce Davis testified, over objection, that two weeks
before the shooting Abbott and the victim visited Davis at her
Just before leaving, Abbott ordered the victim to go
start the truck.
When the victim refused, Abbott became
frustrated and forcefully struck the victim in the face.
cross-examination, Abbott admitted that he hit the victim on
that occasion, but he maintained that it was a "playful" tap.
Here, the evidence tended to establish the nature of the
marital relationship, which Abbott testified was a loving one,
and tended to show Abbott's feelings toward his wife, which he
later testified was devotion.
Evidence showing the relationship
between Abbott and his wife was probative to show Abbott's
motive and intent.
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 was
properly admitted to show the defendant's relationship with his
victims, which proves motive and intent).
The evidence that
Abbott struck his wife falls within an exception to the rule
barring the admission of evidence of prior bad acts, and the
trial judge did not err by finding that the probative value of
the testimony outweighed any prejudicial effect.
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18 Va. App. at 280-81, 443 S.E.2d at 422.
Thus, the trial court
did not err by admitting the testimony.
For the foregoing reasons, we affirm the convictions.
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