COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Bumgardner
Argued at Alexandria, Virginia
PAUL E. ALLEN
MEMORANDUM OPINION * BY
v. Record No. 0584-97-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carleton Penn, Judge Designate
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Public Defender
Commission, on briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Paul E. Allen (appellant) appeals his conviction for
brandishing a firearm on the basis that the court improperly
instructed the jury on the burden of proof for his claim of
self-defense. Finding no error, we affirm.
The facts which are material to the issue on appeal follow.
Paul Sweeny (Paul) held a note on appellant's house and
foreclosed on the note when appellant fell substantially behind
in the payments. Paul gave appellant notice to vacate the house,
and went to inspect the house with his brother, Charles Sweeny
(Charles), and a friend, Dale Toler, on February 8, 1996. In the
course of trying to conduct the inspection of the house,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant pulled out a handgun and pointed the gun at Paul,
Charles and Toler, and the three fled in their vehicles.
Appellant was charged with brandishing a firearm in violation of
Code § 18.2-282.
Appellant advanced a defense of self-defense at trial. He
testified that before Paul and Toler arrived at the house,
Charles approached him with a knife-like object, told him, "I'm
your worst nightmare," and threatened to mutilate him. Appellant
testified that Paul and Toler arrived at the house in a vehicle
and that he told them to leave. Appellant stated that he grabbed
a plastic toy pistol from his car and scared Paul, Charles and
Toler away with it. Appellant stated that the incident left him
"terrified."
The court instructed the jury to consider the instructions
as a whole. It also instructed the jury that they should return
a verdict of not guilty unless the Commonwealth proved each
element of the crime beyond a reasonable doubt and that, "There's
no burden on the Defendant to produce any evidence." The court
also instructed the jury on the law of self-defense:
If you believe from the evidence that the
Defendant was without fault in provoking or
bringing on the difficulty and that the
Defendant reasonably feared under the
circumstances as they appeared to him that he
was in danger of harm, then the Defendant had
the right to use such force as was reasonably
necessary to protect himself from threatened
harm.
If you further believe that the
Defendant used no more force than was
reasonably necessary to protect himself from
the threatened harm, then you shall find the
2
Defendant not guilty.
Appellant asked the court to provide the following
instruction to the jury:
In relying on a plea of self-defense, there
is no burden upon Mr. Allen to establish such
a defense beyond a reasonable doubt, nor even
by the greater weight of the evidence. If
after having considered all the evidence, you
entertain a reasonable doubt whether or not
Mr. Allen acted in self-defense, you must
find him not guilty.
The court refused to give the proffered instruction. The jury
returned a verdict of guilty.
Appellant contends that the trial court erred in failing to
instruct the jury that he bore no burden to prove self-defense by
a preponderance of the evidence. "A reviewing court's
responsibility in reviewing jury instructions is 'to see that the
law has been clearly stated and that the instructions cover all
issues which the evidence fairly raises.'" Darnell v.
Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)
(quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856,
858 (1982)).
Where the evidence supports the theories of both the defense
and the Commonwealth, "the trial judge is required to give
requested instructions covering both theories." Diffendal v.
Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24, 26 (1989)
(citing Jackson v. Commonwealth, 96 Va. 107, 114, 30 S.E. 452,
454 (1898)). In accordance with this well established principle,
the trial court properly instructed the jury on appellant's
3
theory of self-defense. In asserting a defense of self-defense,
a defendant has no burden to prove self-defense beyond a
reasonable doubt or even by a preponderance of the evidence.
Hale v. Commonwealth, 165 Va. 808, 814, 183 S.E. 180, 183 (1936).
Rather, a defendant merely "assumes the burden of introducing
evidence of justification 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 (1978).
As the court instructed the jury, the jury must "consider
the instructions as a whole and in the light of the evidence
applicable to the issues presented." Rollston v. Commonwealth,
11 Va. App. 535, 541, 399 S.E.2d 823, 826 (1991). Before
instructing the jury on the law of self-defense, the court
specifically instructed the jury that, "There's no burden on the
Defendant to produce any evidence." It also instructed the jury
on the presumption of innocence and the Commonwealth's burden to
prove each element of the crime beyond a reasonable doubt.
Because the trial court correctly instructed the jury on the
precise principle of law requested by the defendant, it properly
refused to give a second instruction on the same principle.
Wilson v. Commonwealth, 25 Va. App. 263, 275, 487 S.E.2d 857, 863
(1997) (citing Cirios v. Commonwealth, 7 Va. App. 292, 303-04,
373 S.E.2d 164, 170 (1988)); Diffendal, 8 Va. App. at 423, 382
S.E.2d at 27 (citing Agostini v. Commonwealth, 136 Va. 658, 663,
116 S.E. 384, 385 (1923)). Therefore, we affirm appellant's
4
conviction.
Affirmed.
5