                     COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia

BARBARA ANN CUFFEE
                                     MEMORANDUM OPINION * BY
v.   Record No. 2589-97-1          JUDGE JAMES W. BENTON, JR.
                                       SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                    William F. Rutherford, Judge

           Allan D. Zaleski (Weisberg & Zaleski, on
           brief), for appellant.
           Steven A. Witmer, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



      Barbara Ann Cuffee was indicted and tried by a jury on

charges of malicious wounding committed as a part of a mob, see

Code § 18.2-41, and malicious wounding of a law enforcement

officer, see Code § 18.2-51.1.    The jury convicted Cuffee of

assault and battery.    On this appeal, Cuffee contends that the

trial judge erred in refusing three jury instructions.     Two of

the instructions concern self-defense, and the third addresses

witness credibility.    For the reasons that follow, we affirm the

conviction.

                                  I.

      At trial, the Commonwealth's evidence proved that Police

Officers Dahl and Mitcheltree responded to a call for assistance

from Jody Gifford, an animal control officer, who was at an

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
elementary schoolyard attempting to apprehend a stray dog.

Gifford observed a boy running with the dog through the crowd and

behind the school.    When Gifford and Officer Dahl detained the

boy, a large group of people who were using the basketball courts

and recreation area began yelling and cursing at the officers.

Officer Dahl told the crowd to "Shut up."    Cuffee, whom Officer

Dahl identified as having been one of the persons screaming and

cursing at her, responded "What are you talking to those kids

that way for?"
     After Officer Dahl sat in her vehicle with the boy, she

heard an adult male say, "If she gets out of the car again, let's

just kick her ass."   Officer Dahl testified that she exited the

car and said, "Did somebody say they wanted to kick my ass?"      She

then approached Cuffee to have a conversation with her.    Cuffee,

whom Officer Dahl believed was leading the crowd, told Officer

Dahl to "get out of her face."    Officer Dahl responded "I'm not

in your face."

     Cuffee's daughter then intervened.     Officer Dahl testified

that Cuffee's daughter approached her and said, "bitch, you best

get out of my mama's face or I'm going to kick your ass."    As

Officer Dahl turned to face Cuffee's daughter, Cuffee's daughter

hit Officer Dahl.    When Officer Dahl grabbed Cuffee's daughter to

arrest her for assault, a general melee occurred.    Officer Dahl

testified that Cuffee threatened to kill her, choked her, and

pushed her backwards.




                                 - 2 -
     Cuffee disputed much of Officer Dahl's testimony.     She

testified that after Officer Dahl yelled at the children to "shut

up" and put the boy in her vehicle, someone in the crowd said, "I

ought to beat that bitch's ass."    Officer Dahl exited her

vehicle, unlatched her gun, and approached Cuffee.   Cuffee told

Officer Dahl she didn't know why Officer Dahl unlatched her gun

and approached her.   She also testified that she admonished

Officer Dahl for "talking to the kids . . . nasty" and

challenging the children who wanted to "beat [her] ass" to come

forward.   Officer Dahl responded by pointing her finger in

Cuffee's face and loudly saying that she was challenging the

children because "she wanted to."
     Cuffee testified that when her daughter told Officer Dahl to

get out of Cuffee's face, Officer Dahl grabbed Cuffee's daughter,

tried to "sling her," and struck Cuffee's daughter in the face.

The fight then began.   Cuffee, fearing for her daughter's safety

and trying to stop the fight, grabbed her daughter and pinned her

against a vehicle.    Cuffee testified that as Officer Dahl swung

over Cuffee to hit Cuffee's daughter, Officer Mitcheltree pulled

Cuffee away and told her she was under arrest.   Officer

Mitcheltree made Cuffee place her hands on the police car.

     Cuffee further testified that a bystander broke up the fight

between Officer Dahl and Cuffee's daughter.   However, as the

bystander was walking her daughter away, Officer Dahl attacked

the daughter again.   Cuffee jumped in front of Officer Dahl,




                                - 3 -
grabbed her uniform "with no force," and pushed her back away

from Cuffee's daughter.   Cuffee testified that she grabbed

Officer Dahl around the neck because Officer Dahl punched Cuffee

in the face.   Other witnesses supported Cuffee's version of the

events.

     At the conclusion of the evidence, the trial judge refused

three of Cuffee's proposed jury instructions.   Instruction B

provided the following statement on self-defense:
          In passing upon the danger, if any, to which
          the Defendant, Barbara Cuffee[,] perceived,
          you will consider the circumstances as they
          reasonably appeared to her, and draw such
          conclusions from these circumstances as she
          could reasonably have drawn, situated as she
          was at the time; and the Court instructs you
          that the Defendant, Barbara Cuffee, is
          entitled to be tried and judged by the facts
          and circumstances as they reasonably appeared
          to her.
Instruction C, also on the issue of self-defense, recited as
follows:

          A person has the right to use reasonable
          force to stop another who manifestly intends
          and endeavors by violence or surprise to
          commit an assault on his or her family.

Instruction D concerning witness credibility provided as follows:

          Although one or more witnesses may positively
          testify as to an alleged fact and although
          the said testimony may not be contradicted by
          other witnesses, the jury may altogether
          disregard said testimony if you believe the
          same to be untrue.


     The jury acquitted Cuffee of malicious wounding as part of a

mob and convicted Cuffee of assault and battery, a

lesser-included offense of the charge of malicious wounding of



                               - 4 -
the officer.    On the jury's recommended sentence of three months

in jail and a $2,500 fine, the trial judge entered judgment on

that verdict.




                                - 5 -
                                  II.

     "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) (citation omitted).    Thus, when the

evidence is conflicting, "we must view the evidence with respect

to the refused instruction in the light most favorable to the

appellant."     Caudill v. Commonwealth, 27 Va. App. 81, 85, 497

S.E.2d 513, 514 (1998).    However, the principle is well

established that "[w]hen granted instructions fully and fairly

cover a principle of law, a trial [judge] does not abuse [his]

discretion in refusing another instruction related to the same

legal principle."     Stockton v. Commonwealth, 227 Va. 124, 145,

314 S.E.2d 371, 384 (1984).

     The trial judge instructed the jury as follows on the law of

self-defense:
                If you believe from the evidence that the
            defendant was to some degree at fault in
            provoking or bringing on the fight, and if
            you further believe that when attacked:

                 (1) she retreated as far as she
                 safely could under the
                 circumstances

                 (2) in a good faith attempt to
                 abandon the fight; and

                 (3) made known her desire for peace
                 by word or act; and

                 (4) she reasonably feared, under
                 the circumstances as they appeared


                                 - 6 -
                 to her, that her daughter was in
                 danger of bodily harm; and

                 (5) she used no more force that was
                 reasonably necessary to protect her
                 daughter from the threatened harm,
                 then you shall find the defendant
                 not guilty;

and,

                If you believe from the evidence that the
            defendant was without fault in provoking or
            bringing on the fight, and that the defendant
            reasonably feared, under the circumstances as
            they appeared to her, that her daughter was
            in danger of harm, then the defendant had the
            right to use such force as was reasonably
            necessary to protect her daughter from the
            threatened harm. If you further believe that
            the defendant used no more force than was
            reasonably necessary to protect her daughter
            from the threatened harm, then you shall find
            the defendant not guilty.

       Cuffee argues that although those instructions accurately

state the relevant legal principles, they do not instruct the

jury on "her version of the case."      We disagree.   The

instructions that were given to the jury fully and fairly

informed the jury of each principle that is contained in the two

self-defense instructions proposed by Cuffee and refused by the

trial judge.   Accordingly, the trial judge did not err in

refusing Cuffee's Instructions B and C.      See Willis v.

Commonwealth, 10 Va. App. 430, 444, 393 S.E.2d 405, 412 (1990).

       The trial judge also refused Cuffee's Instruction D in favor

of another instruction concerning credibility of the witnesses.

The trial judge instructed the jury as follows:
             You are the judges of the facts, the
          credibility of the witnesses, and the weight



                                - 7 -
           of the evidence. You may consider the
           appearance and manner of the witnesses on the
           stand, their intelligence, their opportunity
           for knowing the truth and for having observed
           the things about which they testified, their
           interest in the outcome of the case, their
           bias, and, if any have been shown, their
           prior inconsistent statements, or whether
           they have knowingly testified untruthfully as
           to any material fact in the case.

              You may not arbitrarily disregard
           believable testimony of a witness. However,
           after you have considered all the evidence in
           the case, then you may accept or discard all
           or part of the testimony of a witness as you
           think proper.
              You are entitled to use your common sense
           in judging any testimony. From these things
           and all the other circumstances of the case,
           you may determine which witnesses are more
           believable and weigh their testimony
           accordingly.


     While Cuffee's Instruction D would have explicitly informed

the jury that uncontradicted testimony of several witnesses

concerning a fact may be disregarded if the jury believed the

testimony to be untrue, the instruction that was given to the

jury does recite the same principle, albeit in a more general

manner.   We are mindful that "[a] person accused of a crime is

entitled to instructions which present the grounds of [her]

defense from [her] point of view."     Wade v. Commonwealth, 202 Va.

117, 123-24, 116 S.E.2d 99, 104 (1960).    However, we find no

basis in the record to conclude that the trial judge's use of the

more general statement of the principle was prejudicial to

Cuffee.

     Accordingly, we affirm the conviction.



                               - 8 -
        Affirmed.




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