Michael Anthony Bottoms v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Willis and Overton
Argued at Alexandria, Virginia
MICHAEL ANTHONY BOTTOMS
v. 	Record No. 0551-95-4 	OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA 	APRIL 30, 1996
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
Vernon H. Miles, Sr. (Ronald W. Fahy, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his conviction of attempted capital murder,
Michael Anthony Bottoms contends (1) that the evidence is
insufficient to sustain his conviction, (2) that the trial court
erred in admitting evidence of other crimes, and (3) that the
trial court erred in denying his motion for a mistrial. 	We find
no error and affirm the judgment of the trial court.
On May 15, 1994, at 6:10 a.m., Bottoms was driving south on
Interstate 95 in Prince William County. 	He passed Trooper
Campbell, who was parked on the right shoulder, with his blue
emergency lights flashing, issuing a citation. 	Bottoms drove by,
made a U-turn seventy-five feet away, drove north in the south-
bound lane, made another U-turn, and pulled up beside the patrol
car.
Bottoms asked Campbell whether he was driving in the right

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direction to reach Savannah, Georgia. 	Campbell told him to park
and wait in front of the car receiving the ticket. 	Bottoms did
as Campbell directed, but then got out of his car and approached
the patrol car. 	Campbell exited the patrol car and told Bottoms
to return to his car.
When Campbell finished issuing the citation, he approached
Bottoms' car. 	He stood at the rear of the vehicle and asked
Bottoms for his license and registration. 	Bottoms had neither
and told several different stories concerning ownership of the
car. 	Bottoms attempted several times to lure Campbell to the
driver's window. 	However, Campbell was suspicious and refused to
approach. 	He could see only Bottoms' left hand. 	Campbell
directed Bottoms to exit the car. 	After Bottoms got out of the
car, Campbell searched him for weapons and finding none, put him
in the patrol car. 	When Campbell called in the information
Bottoms gave concerning his driver's license, he learned that
Bottoms had a valid South Carolina license. 	A DMV check on the
license plates on Bottoms' car revealed that they belonged to a
Buick, not a Renault, the make of car that Bottoms was driving.
After another officer arrived, Campbell spoke to the two
female passengers in Bottoms' car. 	He then ran a vehicle
identification number check on the car and discovered that it had
been stolen the night before in Pennsylvania. 	Campbell then
arrested Bottoms and the two passengers.
The car was searched and a Taurus .38 caliber revolver was

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found in the glove compartment. 	The revolver contained three
live rounds and two expended cartridges.
In his patrol car on Interstate 95, Campbell read Bottoms
his rights and Special Agent Scott read those rights to Bottoms
again at the Adult Detention Center in Manassas. 	Bottoms
acknowledged both times that he understood his rights. 	Bottoms
confessed that he had attempted to lure Campbell into shooting
range, intending to kill him. 	He said that he was holding the
loaded revolver between the seats with the hammer cocked, and
that he did not shoot Campbell while he stood at the rear of the
car because he saw that Campbell was wearing a bulletproof vest
and would be able to return fire if shot at that distance.
Andrea Ross, one of the passengers in Bottoms' car,
testified that Bottoms intended to kill Campbell, that he had the
revolver in his hand while he was talking to Campbell, and that
he attempted to get Campbell to approach his window so that he
could shoot him.
I.
Bottoms first contends that the evidence is insufficient to
sustain his conviction of attempted capital murder. 	"To sustain
a conviction for attempted murder, the evidence must establish
both a specific intent to kill the victim and an overt but
ineffectual act committed in furtherance of the criminal
purpose." 	Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d
193, 198 (1987). 	An overt act must go beyond mere preparation to

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commit the crime. 	See Lewis v. Commonwealth, 15 Va. App. 337,
340, 423 S.E.2d 371, 374 (1992). 	Bottoms does not contest the
sufficiency of the evidence to prove his intent to kill Campbell.
Rather, he argues that because he did not point the gun at
Campbell, he committed no overt act toward the commission of
murder.
"Where the sufficiency of the evidence is challenged on
appeal, the court must consider the evidence in the light most
favorable to the Commonwealth, giving to it all reasonable
inferences fairly deducible therefrom." 	Brown v. Commonwealth, 5
Va. App. 489, 491, 364 S.E.2d 773, 774 (1988).
Although an overt act must go beyond mere preparation, "[i]t
need not be the last proximate act to the consummation of the
crime in contemplation, but it is sufficient if it be an act
apparently adapted to produce the result intended." 	Granberry v.
Commonwealth, 184 Va. 674, 678, 36 S.E.2d 547, 548 (1946).
Bottoms made two U-turns on Interstate 95 in order to approach
Campbell. 	He intended to shoot Campbell. 	He held the loaded .38
caliber revolver, with the hammer cocked, in his right hand out
of Campbell's view. 	He repeatedly tried to lure Campbell to the
driver's window so that he could shoot him at close range. 	This
active conduct, aimed at the accomplishment of the crime,
constituted an overt act "adapted to produce" the commission of
murder.
II.

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Bottoms next contends that the trial court erred in allowing
the Commonwealth to present evidence that he had committed a
carjacking in South Carolina and a robbery and larceny of a car
in Pennsylvania. 	As a general rule, other crimes evidence is
inadmissible. 	Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
S.E.2d 802, 805 (1970). 	Bottoms' pretrial motion in limine,
seeking suppression of the portions of his confession dealing
with the alleged prior offenses, was granted. 	He argues that
this ruling became the law of the case and was binding on the
judge who conducted the trial. 	Such is not the law. 	Trial
judges are required to rule on issues as they develop at trial.
If the development of the case requires reversal of an earlier
ruling, it is the trial judge's duty to order that reversal. 	The
court's evidentiary rulings must be based on the case as it
actually develops, not as it may be supposed prospectively that
it will develop. 	"A trial court is empowered to change a legal
determination as long as it retains jurisdiction over the
proceedings before it." 	Turner v. Sheldon D. Wexler, D.P.M.,
P.C., 244 Va. 124, 128, 418 S.E.2d 886, 888 (1992).
Bottoms argues that the prejudicial effect of proof of his
prior offenses outweighed its probative value. 	We disagree.
That proof disclosed a continuing course of criminal conduct and
explained Bottoms' motive in stopping and attempting to kill
Trooper Campbell during Bottoms' crime spree. 	Its probative
value was significant. 	The trial court did not abuse its

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discretion in finding that the probative value outweighed any
incidental prejudice to Bottoms.
"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).
"While evidence of other crimes is generally inadmissible due to
its prejudicial nature, it is admissible 'in cases where the
motive, intent or knowledge of the accused is involved, or where
the evidence is connected with or leads up to the offense for
which the accused is on trial.'" 	Curtis v. Commonwealth, 13 Va.
App. 622, 625, 414 S.E.2d 421, 423 (1992) (en banc). 	We find no
abuse of the trial court's discretion in admitting evidence of
Bottoms' previous offenses for the limited purpose of
demonstrating his motive for attempting to kill Campbell.
III.
Finally, Bottoms contends that the trial court erred in
refusing to grant a mistrial when the Commonwealth referred to
his prior unadjudicated crimes during the sentencing phase of the
trial. 	He argues that the trial court's instruction to the jury
to disregard those unadjudicated offenses was insufficient to
overcome the resulting prejudice. 	We disagree.
"On appeal the denial of a motion for a mistrial will not be
overruled unless there exists a manifest probability that the
denial of a mistrial was prejudicial." 	Tomlinson v.

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Commonwealth, 8 Va. App. 218, 223, 380 S.E.2d 26, 29 (1989)
(quoting Harward v. Commonwealth, 5 Va. App. 468, 478, 364 S.E.2d
511, 516 (1988)). 	Evidence of both the South Carolina carjacking
and the Pennsylvania robbery and auto larceny was admitted during
the guilt phase of the trial. 	"[T]he jury, at the sentencing
phase, 'would necessarily have access to the evidence presented
in the guilt phase of the trial.'" 	Gilley v. Commonwealth, 21
Va. App. 740, 744, 467 S.E.2d 312, 313 (1996) (citations
omitted). 	The trial court's cautionary instruction properly and
sufficiently guided the jury's consideration of this evidence.
We find no error in its denial of Bottoms' motion for a mistrial.
The judgment of the trial court is affirmed.
Affirmed.