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COURT OF APPEALS OF VIRGINIA
Present:    Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
JOHNNY ANTHONY VALENTINE
                                                                                             OPINION BY
v.                                                                   Record No.  1110-97-3   JUDGE SAM W. COLEMAN III
SEPTEMBER  1,  1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services  (Public Defender
Commission, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General  (Richard Cullen, Attorney General, on
brief), for appellee.
Johnny Anthony Valentine was convicted in a bench trial for
driving after having been declared an habitual offender, fourth
offense, in violation of Code  §  46.2-357.    The sole issue on
appeal is whether the trial court erred in excluding Valentine's
evidence concerning his efforts to have his driving privilege
restored.    Because the trial judge did not abuse his discretion
in rejecting the evidence, we affirm Valentine's conviction.
BACKGROUND
City of Danville Officer J.S. Bucchi testified that at
10:45 p.m. on December  13,  1996, he stopped a truck being driven
without its headlights activated.    When Bucchi approached the
truck and asked the driver for his operator's license and vehicle
registration, the driver handed the officer the vehicle
registration and stated that he needed to exit the truck to




obtain his driver's license.    The driver stood outside the truck,
fumbled through his wallet, and then fled.    Bucchi chased the
driver but was unable to apprehend him.
When Bucchi returned to the truck, he found a receipt on the
ground.    He had not seen the driver drop the receipt.    The
receipt had the name "Johnny Valentine" written on it.    Bucchi
examined a photograph of Johnny Valentine from police records,
determined that Valentine resembled the driver, and obtained a
warrant for Valentine's arrest.    At trial, Bucchi identified
Valentine as the driver of the truck and as the person whose
photograph he viewed and charged with the violation.    Bucchi did
not retain the receipt he had found.
Valentine admitted that he was an habitual offender.
Defending on the ground that he was not the driver, Valentine
presented evidence that the truck was registered to Rudolph Hall.
Valentine also testified that he was at home watching television
with his sister at the time in question.    When Valentine
attempted to present evidence about his efforts to have his
driving privilege restored, the trial judge sustained the
Commonwealth's relevancy objection.    Valentine made a proffer
that the excluded evidence would have proven that Valentine
retained an attorney in October  1995 to petition for restoration
of Valentine's driving privilege; that the attorney had obtained
an order from the trial judge authorizing an evaluation by VASAP;
that the attorney had informed Valentine that a hearing had been
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set for December  3,  1996; and that Valentine was making an effort
to pay the fines and court costs necessary to obtain his license
reinstatement.    Valentine also sought to produce other evidence,
including several letters from an attorney advising Valentine
that his license restoration petition had been set for hearing
and that Valentine needed to pay the outstanding fines and court
costs before he could have his driving privilege restored.
After the proffer, the Commonwealth's attorney stated:
Judge, the only possible relevance that I can
see, is I suppose if counsel is trying to say
he wouldn't have done anything to jeopardize
his ability to get his license back, then
.  .  . then, I will withdraw my objection, but
if that's the case, then I think I'm
permitted to go into the substance of his
prior convictions, because that certainly
jeopardized his ability to get his driving
status reinstated.
Valentine claimed the evidence was offered to prove that he
had a motive not to risk driving when he was in the process of
having his driving privilege restored.
The trial judge ruled that he would take
judicial notice of the  [o]rder that  [t]he
Court entered  [making reference to the VASAP
evaluation order], and I think that we could
stipulate  .  .  . I certainly will be willing
to consider that he filed for restoration,
but I think that's absolutely irrelevant as
far as  .  .  . the issues in here are
concerned.
Thus, the trial judge took judicial notice of the fact shown by
the VASAP order that Valentine had petitioned for restoration and
that a VASAP referral had been made, but the trial judge ruled
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the other proffered evidence inadmissible.    As to the weight that
the trial judge gave the evidence of Valentine's having
petitioned for his license and the VASAP referral, he held the
evidence to be "irrelevant."
At the conclusion of the evidence, the trial judge convicted
Valentine of driving after having been declared an habitual
offender.
ANALYSIS
Valentine first contends the Commonwealth conceded that the
evidence was relevant, and, therefore, it is barred from
asserting on appeal that the evidence was irrelevant or that the
trial court's ruling was harmless error.    We disagree.
Although the Commonwealth's attorney stated at one point
that he would withdraw his objection, he did so on the condition
he would be able to examine Valentine about his prior
convictions.    However, the trial judge ruled on the objection and
held that he would consider a portion of the evidence and that
the balance was irrelevant and inadmissible.    Thus, the trial
judge did not consider whether the Commonwealth's attorney
conceded relevance or withdrew his objection.    Accordingly, the
relevance issue raised by the Commonwealth's attorney's objection
was decided by the trial judge.
Valentine next argues that the excluded evidence was
relevant and, therefore, should have been admitted by the trial
judge.    We disagree.
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"The test establishing relevance is not whether the proposed
evidence conclusively proves a fact, but whether it has any
tendency to establish a fact at issue."    Wise v. Commonwealth,
6 Va. App.  178,  188,  367 S.E.2d  197,  203  (1988)  (citing Johnson
v. Commonwealth,  2 Va. App.  598,  601,  347 S.E.2d  163,  165
(1986)).    "Evidence which bears upon and is pertinent to matters
in issue, and which tends to prove  [or disprove] the offense, is
relevant and should be admitted."    Coe v. Commonwealth,  231 Va.
83,  87,  340 S.E.2d  820,  823  (1986); see Epperly v. Commonwealth,
224 Va.  214,  230,  294 S.E.2d  882,  891  (1982); Ragland v.
Commonwealth,  16 Va. App.  913,  918,  434 S.E.2d  675,  678  (1993).
[T]he Virginia Supreme Court has said that
relevant evidence is any evidence "which may
throw light upon the matter being
investigated, and while a single
circumstance, standing alone, may appear to
be entirely immaterial or irrelevant, it
frequently happens that the combined force of
many concurrent and related circumstances,
each insufficient in itself, may lead a
reasonable mind irresistibly to a
conclusion."
Hope v. Commonwealth,  10 Va. App.  381,  386,  392 S.E.2d  830,  833
(1990)  (en banc)  (quoting Peoples v. Commonwealth,  147 Va.  692,
704,  137 S.E.  603,  606  (1927)).    However, "[e]vidence of
collateral facts is generally inadmissible because it tends to
draw away the minds of the jury from the point in issue  .  .  . and
mislead them."    Haynes v. Commonwealth,  104 Va.  854,  858,  52 S.E.
358,  359  (1905).    "The admissibility of evidence is within the
broad discretion of the trial court, and a ruling will not be
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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)  (citing Coe,  231 Va. at  87,  340 S.E.2d at  823).
Valentine offered the driving privilege restoration evidence
to rebut or disprove that he was the driver.    Valentine testified
in his own defense and denied driving.    He contends the evidence
that he had taken legal and administrative action to have his
driving privilege restored tends to prove he had a reason or
motive not to drive.    This evidence, he asserts, further supports
his claim that he was not the driver.
The excluded evidence has no tendency to prove that
Valentine was not the driver of the vehicle.    Proof of motive to
commit an offense is admissible as tending to prove intent.    See
Robinson v. Commonwealth,  278 Va.  554,  557,  322 S.E.2d  841,  843
(1984).    Similarly, lack of motive is generally admissible to
prove lack of a reason or intent to commit an offense.    See
Oliver v. Commonwealth,  151 Va.  533,  543,  145 S.E.  307,  310
(1928); see also People v. Weatherford,  164 P.2d  753,  765  (Cal.
1945)  (en banc).    Here, however, the proffered evidence at issue
has no logical tendency to prove lack of motive or intent.    The
evidence does not tend to prove that Valentine had a reason to
refrain from driving, or even that he had a reasonable
expectation that his driving privilege might be restored in the
foreseeable future.    The evidence has no more tendency to
disprove that he was the driver than his own testimony that he
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would not have driven because he knew it was illegal and would
not want to incur a fine or jail sentence.
To the extent that the proffered evidence arguably had some
relevance, the trial judge admitted the evidence that Valentine
had petitioned for restoration of his license and that a VASAP
evaluation had been ordered.    The evidence concerning the
correspondence with his attorney and the fact that a trial date
may have been set were collateral facts that did not tend to
prove that Valentine was not the driver.    The trial judge, who
heard the case without a jury, did not abuse his discretion in
limiting the scope of the evidence concerning Valentine's efforts
to have his driving privilege restored.
Accordingly, we hold that the trial court did not abuse its
discretion by rejecting the evidence of collateral facts.    The
judgment of the trial court is affirmed.
Affirmed.
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Benton, J., dissenting.
"Evidence which bears upon and is pertinent to matters in
issue, and which tends to prove the offense, is relevant and
should be admitted."    Coe v. Commonwealth,  231 Va.  83,  87,  340
S.E.2d  820,  823  (1986).    "Evidence is relevant if it has any
logical tendency, however slight, to establish a fact at issue in
the case."    Ragland v. Commonwealth,  16 Va. App.  913,  918,  434
S.E.2d  675,  678  (1993).    Stated differently, every fact that
"tends to establish the probability or improbability of a fact in
issue, is admissible."    Epperly v. Commonwealth,  224 Va.  214,
230,  294 S.E.2d  882,  891  (1982).    Thus, evidence "which has the
tendency to add force and effect to a party's defense is
admissible, unless excluded by a specific rule or policy
consideration."    Cash v. Commonwealth,  5 Va. App.  506,  510,  364
S.E.2d  769,  771  (1988).
In his defense to the charge, Valentine denied that he was
the driver.    He testified that he had never met Officer Bucchi
before he appeared in court on the current charge.    Valentine
testified that he was at home watching television with his sister
at the time the officer stopped the truck.
Valentine proved that the truck was registered to Rudolph
Hall.    When asked to explain the presence of the receipt,
Valentine testified that in his landscaping business he gave
receipts and obtained receipts with his name on them.    He also
testified that he knew Hall and that he had been a passenger in
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the truck on other occasions.
Valentine's sister testified that Valentine arrived home at
9:00 p.m. on December  13 and watched television with her until
2:00 a.m.    She also testified that Valentine and his brother are
similar in their appearance.
When the trial judge sustained the Commonwealth's relevance
objection, the trial judge denied Valentine the right to present
evidence in his defense detailing his motive not to drive.
Valentine's counsel made an offer of proof of the relevance of
the excluded evidence.    After the offer of proof, the
Commonwealth's attorney stated:
Judge, the only possible relevance that I can
see, is I suppose if counsel is trying to say
he wouldn't have done anything to jeopardize
his ability to get his license back, then
.  .  . then, I will withdraw my objection, but
if that's the case, then I think I'm
permitted to go into the substance of his
prior convictions, because that certainly
jeopardized his ability to get his driving
status reinstated.
Valentine's counsel agreed that the purpose of the proffered
evidence was to show why Valentine would not risk driving.
However, the trial judge ruled that the evidence was "absolutely
irrelevant as far as  .  .  . the issues in here are concerned."
The trial judge's ruling was erroneous as a matter of law.
The trial judge took judicial notice of the order that the trial
judge entered when Valentine's counsel was in the process of
seeking to have Valentine's license restored and was "willing to
consider that  [Valentine] filed for restoration."    However, the
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trial judge said "that's absolutely irrelevant as far as  .  .  .
the issues in here are concerned."    The clear inference to be
drawn from the trial judge's unambiguous comment is that the
trial judge might have considered the proffered evidence to show
that Valentine drove believing his efforts at seeking judicial
restoration of his license justified his conduct.
The evidence that was rejected would have tended to prove an
element of Valentine's defense.    Valentine denied that he was the
driver of the truck and offered the evidence to establish that he
had a motive to refrain from driving.    Motive or lack of motive
is often a relevant issue in a criminal prosecution.    See
Robinson v. Commonwealth,  228 Va.  554,  557,  322 S.E.2d  841,  843
(1984); Inge v. Commonwealth,  217 Va.  360,  363,  228 S.E.2d  563,
566  (1976); Williams v. Commonwealth,  208 Va.  724,  730,  160
S.E.2d  781,  785  (1968); Enoch v. Commonwealth,  141 Va.  411,  437,
126 S.E.  222,  230  (1925).
"Proof of motive does not establish guilt,
nor want of it establish innocence; but while
such proof is not a necessity, it is of great
importance, and the absence of motive is a
factor for the consideration of the jury, but
only as bearing on the question whether or
not the crime was committed by the accused."
Ferrell v. Commonwealth,  177 Va.  861,  874,  14 S.E.2d  293,  298
(1941)  (citation omitted).
I disagree with the majority's conclusion that this is
"evidence of collateral facts."
A fact is wholly collateral to the main
issue if the fact cannot be used in evidence
for any purpose other than for contradiction
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.    Conversely, if the evidence tends,
even slightly, to throw light upon the main
fact in issue, it is not collateral, but
probative.    Every fact, however remote or
insignificant, that tends to establish the
probability or improbability of a fact in
issue, is admissible.
Seilheimer v. Melville,  224 Va.  323,  327,  295 S.E.2d  896,  898
(1982)  (citations omitted).    Evidence that tends to establish
motive is not collateral or secondary evidence.    See Banovitch v.
Commonwealth,  196 Va.  210,  221,  83 S.E.2d  369,  374  (1954).
Certainly, evidence of motive when offered in support of the
theory of defense is not a collateral fact.    See Compton v.
Commonwealth,  219 Va.  716,  729,  250 S.E.2d  749,  757  (1979).    For
example, "[t]he absence of a motive  .  .  .  [sometimes] points to
innocence rather than guilt."    Van Dyke v. Commonwealth,  196 Va.
1039,  1050,  86 S.E.2d  848,  853  (1955).    In this case, the
evidence of motivation was a circumstantial factor that tended to
support Valentine's testimony that he was not the driver.
The following principles are well established in Virginia:
"'[W]here the proper determination of a fact
depends upon circumstantial evidence, the
safe, practical rule to follow is that in no
case is evidence to be excluded of facts or
circumstances connected with the principal
transaction, from which an inference can be
reasonably drawn as to the truth of a
disputed fact.['"]
"'The modern doctrine in this connection
is extremely liberal in the admission of any
circumstance which may throw light upon the
matter being investigated, and while a single
circumstance, standing alone, may appear to
be entirely immaterial or irrelevant, it
frequently happens that the combined force of
many concurrent and related circumstances,
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each insufficient in itself, may lead a
reasonable mind irresistibly to a
conclusion.'"
Peoples v. Commonwealth,  147 Va.  692,  704,  137 S.E.  603,  606
(1927)  (citations omitted).
At trial, there was an evidentiary dispute whether Valentine
was the driver.    Valentine testified in his own defense and
denied driving.    Thus, he placed his credibility as a witness
into issue.    The trial judge's resolution of Valentine's
credibility vis-a-vis the officer's credibility "was paramount in
determining the ultimate issue of guilt or innocence."
Evans-Smith v. Commonwealth,  5 Va. App.  188,  210,  361 S.E.2d  436,
448  (1987).    The officer made the connection between the driver
who ran away and Valentine through a receipt he found on the
ground.    The officer's suspicion that the driver dropped the
receipt from his wallet led the officer to examine a photograph
of Valentine.    Valentine offered in evidence a photograph to show
that he and one of his brothers are similar in appearance.    If
the trial judge had not barred the proffered evidence and
understood its purpose, he would have had additional facts which
he could have analyzed and weighed in determining whether
Valentine was more credible.
The evidence tending to support Valentine's denial,
including his positive motive to abide by the law, was relevant
to show he was innocent of the crime.    Therefore, the evidence of
Valentine's lack of motive to drive illegally was relevant
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because it bore upon the issue of whether Valentine drove the
vehicle.    That evidence was not collateral and was improperly
excluded.
For these reasons, I dissent.    I would reverse the
conviction and remand for a new trial.
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