                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia


LARRY BARNES
                                           MEMORANDUM OPINION * BY
v.   Record No. 2685-00-1                   JUDGE ROBERT P. FRANK
                                               OCTOBER 2, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      Marc Jacobson, Judge

          (George A. Anderson, Jr.; Robinson, Neeley &
          Anderson, on brief), for appellant.
          Appellant submitting on brief.

          Kathleen B. Martin, Assistant Attorney
          General (Randolph A. Beales, Acting Attorney
          General, on brief), for appellee.


     Larry Barnes (appellant) was convicted in a bench trial of

second-degree murder, in violation of Code § 18.2-32.    On appeal,

he contends the evidence was insufficient to convict him of

second-degree murder.   Finding no error, we affirm the conviction.

                             BACKGROUND

     On December 24, 1999, at about 4:30 p.m., appellant was at

home preparing to cook a turkey.   His girlfriend, Sheila Gilbert,

was watching television in the den with friends, Chuck Palmer and

his girlfriend, Danielle Truss.    Gilbert's 18-year-old daughter,

Tameca Mitchell, was present, as were four of appellant's

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
grandchildren, who were ages 5, 6, 8 and 9.    Jerry Hannah, another

resident, was playing chess in the living room.

     When Palmer had arrived at the house two or three hours

earlier, he was intoxicated.    He also brought with him a 12-pack

of beer.   All of the adults were drinking that afternoon.

Appellant, however, was drinking less than the others because he

was cooking.

     Palmer began "fussing" with his girlfriend, Danielle, and was

"cussing because he was mad."    Appellant, who was in his bedroom

at this point, came out and asked Palmer to "calm down and stop

the cussing."    Palmer quieted momentarily but then resumed arguing

with Danielle.

     Appellant again came into the den, this time from the

kitchen, and asked Palmer to leave, grabbing him by the shoulder

and lifting him out of his chair.    Palmer had been ousted from the

residence the night before when he also was intoxicated.

Appellant, however, was not involved in that incident.

     When Palmer refused to leave, he and appellant began

"tussling" against the wall, "pushing each other back and forth."

Palmer hit appellant on the head with his fist, but the blow had

little impact on appellant.    Appellant then stabbed Palmer in the

upper left chest with a knife he held in his hand, penetrating the

fur-lined leather jacket Palmer was wearing.   The knife used in

the stabbing belonged to appellant and was about six to eight

inches long.

                                - 2 -
     Palmer told appellant he had stabbed him.     It is

uncontroverted that Palmer was unarmed.

     Tameca Mitchell testified appellant had the knife when he

left the bedroom to tell Palmer to quiet down.    She said the knife

was hanging by his right hip area.     She further testified

appellant was angry with Palmer prior to the "tussling."

     After the stabbing, Palmer walked into the living room and

reclined on the sofa.   About ten minutes later, Hannah opened

Palmer's jacket, discovered he was bleeding, and called 911.

     At this point, appellant was standing in front of his

bedroom, near the den, with the knife in his hand.    The blade had

blood on it.

     Officer M.G. Boone of the Norfolk Police Department

investigated the stabbing.   Boone found Palmer lying on the sofa.

Palmer smelled strongly of alcohol, "sounded to be snoring," and

had been wounded in the upper left chest.    Boone tried to arouse

him, but Palmer was not responsive.    His jacket, which was on the

floor, had an incision in the upper left chest pocket.

     The autopsy showed that Palmer died from a single stab wound

to the left chest that perforated the heart.    The wound was about

one inch wide and three inches deep.

     The testimony of Officer L.W. Achorn was stipulated at trial.

When Achorn arrived at the crime scene, he saw Palmer on the sofa

with a blood stain on his shirt and a puncture wound to his upper

left chest.

                               - 3 -
     When Officer Achorn asked what had happened, appellant said

Palmer "swung at me and I hit him with a knife."         The officer

placed appellant in custody.   As appellant entered the police

vehicle, he said, "[I]t never would have happened if he had left

when I told him to."

     Investigator D.R. Norrell advised appellant of his Miranda

rights and obtained a statement.       Appellant said he had the knife

in his hand because he was cutting the plastic straps off a

turkey.   Appellant told Investigator Norrell,

           I walked into my bedroom, and I had the knife
           in my hand that I had from the kitchen. I
           asked Chuck two or three times to stop
           cussing because the grandkids were around
           there. I asked him numerous times and he
           kept doing it. When I touched him on the
           shoulder to ask him again, he jumped up and
           he struck me on top the head. Then I turned
           around and tried to plunge my knife to make
           him stay away from me, and I didn't know that
           I had hit him. I didn't know I had touched
           him at all.

            *      *       *       *        *        *      *

           It was an accident, that I was swinging at
           him with a knife but not trying to hit him,
           just trying to plunge at him to get away from
           me.

     At trial, appellant testified his girlfriend had asked him to

work on the turkey.    He got his knife from its case in his bedroom

because Tameca was using the only other knife in the house to cut

wrapping paper for the children's toys.         He said the knife

"stay[ed] sharp all the time" because he needed it to cut rope on



                                - 4 -
his job.   Appellant asked Palmer "numerous times" to be quiet

before he grabbed him by the shoulder to get his attention.

     Appellant claimed he was slightly "disoriented" when Palmer

hit him.   Appellant said he lunged at Palmer with the knife to

keep him away.   Appellant testified he "just jabbed out with the

knife," intending to stab Palmer "to warn him off," and did not

know he "had even touched him."   Appellant said he had been

convicted of four felonies, but after having his memory refreshed,

he acknowledged five or six felony convictions.

     At the conclusion of the Commonwealth's case, appellant moved

to strike the evidence contending that no evidence proved malice

and that appellant acted in the "heat of passion."

     At the conclusion of all the evidence, appellant renewed his

motion to strike the evidence but gave no reason for the motion. 1

During his closing argument, appellant again argued the absence of

malice and further contended the knife was not a "dangerous

weapon."




     1
       "In a bench trial, where a defendant wishes to preserve a
sufficiency motion after presenting evidence, the defendant must
make a motion to strike at the conclusion of all the evidence,
present an appropriate argument in summation, or make a motion
to set aside the verdict." Howard v. Commonwealth, 21 Va. App.
473, 478, 465 S.E.2d 142, 144 (1995). It is not necessary to
move to set aside the verdict to preserve sufficiency for
appeal. In this case, appellant made the appropriate argument
in his closing to preserve the issue. We will, therefore,
address the merits of the appeal. Further, the Commonwealth did
not argue default under Rule 5A:18.


                               - 5 -
     The trial court held, considering the totality of the

circumstances, the evidence supported a finding of second-degree

murder.   The court observed that no evidence supported appellant's

contention that he acted out of fear or self-defense or had been

dazed by Palmer's striking him on the head.   The court found it

incredible that appellant had not known he touched Palmer, given

the depth of the knife's penetration.

     Clearly, the trial court did not believe appellant.     The

court concluded appellant was guilty of second-degree murder

because he had acted with malice and without reasonable

provocation.

                              ANALYSIS

     Appellant contends no evidence proved malice, therefore, the

evidence was not sufficient to prove second-degree murder.

           "Where the sufficiency of the evidence is
           challenged after conviction, it is our duty
           to consider it in the light most favorable to
           the Commonwealth and give it all reasonable
           inferences fairly deducible therefrom. We
           should affirm the judgment unless it appears
           from the evidence that the judgment is
           plainly wrong or without evidence to support
           it." Higginbotham v. Commonwealth, 216 Va.
           349, 352, 218 S.E.2d 534, 537 (1975).
           Moreover, "[i]f there is evidence to support
           the conviction, an appellate court is not
           permitted to substitute its own judgment for
           that of the finder of fact, even if the
           appellate court might have reached a
           different conclusion." Commonwealth v.
           Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72
           (1998).

           Furthermore, "[t]he credibility of a witness
           and the inferences to be drawn from proven

                               - 6 -
          facts are matters solely for the fact
          finder's determination. In its role of
          judging witness credibility, the fact finder
          is entitled to disbelieve the self-serving
          testimony of the accused and to conclude that
          the accused is lying to conceal his guilt."
          Marable v. Commonwealth, 27 Va. App. 505,
          509-10, 500 S.E.2d 233, 235 (1998) (citations
          omitted).

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10

(2000).

     "Second degree murder is defined as a 'malicious killing' of

another person."    Lynn v. Commonwealth, 27 Va. App. 336, 351, 499

S.E.2d 1, 8 (1998) (citing Turner v. Commonwealth, 23 Va. App.

270, 274, 476 S.E.2d 504, 506 (1996)), aff'd, 257 Va. 239, 514

S.E.2d 147 (1999).   "The authorities are replete with definitions

of malice, but a common theme running through them is a

requirement that a wrongful act be done 'wilfully or

purposefully.'"    Essex v. Commonwealth, 228 Va. 273, 280, 322

S.E.2d 216, 220 (1984) (citing Williamson v. Commonwealth, 180 Va.

277, 280, 23 S.E.2d 240, 241 (1942)).   In finding a defendant

guilty of second-degree murder, whether the defendant acted with

malice is a determination for the fact finder.   See Jacobs v.

Commonwealth, 132 Va. 681, 685-86, 111 S.E. 90, 92 (1922).

     "'The test of murder is malice.    Every malicious killing is

murder either in the first or second degree -- the former if

deliberate and premeditated, and the latter if not.'"   Wooden v.

Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981)

(quoting Jacobs, 132 Va. at 686, 111 S.E. at 92).   "The trier of

                                - 7 -
fact may infer malice from the deliberate use of a deadly weapon."

Utz v. Commonwealth, 28 Va. App. 411, 415, 505 S.E.2d 380, 382

(1998).

        "Whether or not an accused acted with malice is generally a

question of fact and may be proved by circumstantial evidence."

Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753

(1997).    The trier of fact may infer malice "from 'conduct likely

to cause death or great bodily harm, willfully or purposefully

undertaken.'"    Id. (quoting Essex, 228 Va. at 281, 322 S.E.2d at

222).

        Here, the evidence supports the trial court's finding of

malice.    Appellant, angry about Palmer's cursing in front of his

young grandchildren, was unable to calm Palmer.    Armed with a

deadly weapon, he again approached Palmer and grabbed him out of a

chair by the shoulder.

        When Palmer again refused to leave appellant's residence, a

"tussle" ensued.    Palmer hit appellant on the head with his fist,

and appellant "hit him with a knife."    Appellant testified, "I

tried to plunge my knife to make him stay away from me."

Appellant also testified he intended to stab Palmer to "warn him

off."    The knife was kept sharp by the appellant, who worked with

it frequently.

        While the appellant stated he became disoriented after Palmer

struck him on the head and he did not know the knife actually

touched Palmer, the trial court was free to, and did in fact,

                                 - 8 -
disbelieve appellant.   The trier of fact is not required to accept

a party's evidence in its entirety, see Barrett v. Commonwealth,

231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to

believe and disbelieve in part or in whole the testimony of any

witness, see Rollston v. Commonwealth, 11 Va. App. 535, 547, 399

S.E.2d 823, 830 (1991).   The fact finder may conclude that a

defendant lied to conceal his guilt.     Moore v. Commonwealth, 25

Va. App. 277, 289, 487 S.E.2d 864, 870 (1997).    See Sheppard v.

Commonwealth, 250 Va. 379, 389, 464 S.E.2d 131, 137 (1995).

     From the evidence, the fact finder could properly conclude

that appellant was angry with Palmer for his inappropriate,

inebriated behavior.    When Palmer refused to leave, appellant

assaulted Palmer by grabbing him out of the chair.    When Palmer

hit appellant on the head, appellant intentionally stabbed Palmer

with a deadly weapon.    The trial court rejected appellant's

testimony that the stabbing was accidental and that he did not

intend to "hit him" with the knife.     We must defer to that factual

finding.   See Snow, 33 Va. App. at 774, 537 S.E.2d at 10.

     The fact finder could conclude from the evidence that

appellant deliberately used sufficient force to plunge the knife

deep into Palmer's chest.   The knife, six to eight inches long,

pierced Palmer's fur-lined leather jacket, pierced Palmer's chest

cavity and his heart, producing a wound one inch wide and three

inches deep.



                                - 9 -
     Appellant contends on brief that the trial court found the

act was not malicious because it pronounced his actions were

"reckless."   Appellant takes the trial court's comments out of

context.   In reviewing the entirety of the trial court's comments,

it is apparent that the trial court found malice.   Indeed, the

trial court said, "The Court does find that there is sufficient

malice . . . ."

     Finding no error, we affirm the judgment of the trial court.

                                                    Affirmed.




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