                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


STEPHANIE LEIGH-ANNE CULL, S/K/A
 STEPHANIE LEIGH ANN CULL
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2202-98-2                JUDGE DONALD W. LEMONS
                                              MARCH 28, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Timothy J. Hauler, Judge

          David B. Hargett (Morrissey & Hershner, PLC,
          on brief), for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Stephanie Leigh-Anne Cull appeals her convictions for first

degree murder and abduction.   On appeal she maintains that the

trial court erred (1) by refusing her jury instruction on duress

and (2) by making a videotape, previously shown to the jury at

trial, available to the jury during deliberations.   Finding no

error, we affirm the convictions.




     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                              I.   BACKGROUND

     In her car, Cull drove Kelley Tibbs, Domica Winckler, Tracy

Bitner, Dana Vaughn 1 and the victim, Stacy Hanna, to Marsh Field

in Chesterfield County.      Motivated by "lies" that Hanna had

allegedly told about Tibbs and Bitner, the codefendants 2 beat and

kicked Hanna, cut her with box cutters and dropped a cinder

block on her.   The box cutters were specifically obtained for

purposes of the attack.

     The women transported the severely injured Hanna in the

trunk of Cull's car to a location on Nash Road in Chesterfield

County where they continued to beat and stab her until she died.

The trial record and the briefs of the parties are replete with

graphic details of the attack and the particular acts of the

various participants.       To the extent that any of these details

are necessary to the resolution of an issue on appeal, it will

be considered in the following analysis of that issue.

                      II.    INSTRUCTION ON DURESS

     Cull argues that she was entitled to an instruction

exonerating her from criminal liability if the jury found she

acted under duress.



     1
       Dana Vaughn was also in the car; however, she was not
charged with any offenses.
     2
       Although referred to as "codefendants" the women were
tried separately. As noted previously in Footnote 1, Dana
Vaughn was not charged and, therefore, is not included in our
use of the word "codefendants."

                                   - 2 -
            "If there is evidence in the record to
           support the defendant's theory of defense,
           the trial judge may not refuse to grant a
           proper, proffered instruction." Delacruz v.
           Commonwealth, 11 Va. App. 335, 338, 398
           S.E.2d 103, 105 (1990) (citing Painter v.
           Commonwealth, 210 Va. 360, 365, 171 S.E.2d
           166, 168 (1969)). "If a proffered
           instruction finds any support in the
           credible evidence, its refusal is reversible
           error." McClung v. Commonwealth, 215 Va.
           654, 657, 212 S.E.2d 290, 293 (1975) (citing
           Taylor v. Commonwealth, 186 Va. 587, 591, 43
           S.E.2d 906, 908 (1947)).

Herbin v. Commonwealth, 28 Va. App. 173, 180-81, 503 S.E.2d 226,

230 (1998).   Instructions must be supported by more than a mere

scintilla of evidence.    See Gibson v. Commonwealth, 216 Va. 412,

417, 219 S.E.2d 845, 849 (1975), cert. denied, 425 U.S. 994, 96

S. Ct. 2207, 48 L.Ed.2d 819 (1976).     In determining whether

evidence amounts to more than a scintilla, "we must look at [it]

in the light most favorable to [appellant]."     Foster v.

Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).

     The common law defense of duress excuses acts that would

otherwise constitute a crime where the defendant shows that the

acts were the product of threats inducing a reasonable fear of

immediate death or serious bodily injury.     See United States v.

Bailey, 444 U.S. 394, 409, 100 S. Ct. 624, 634, 62 L.Ed.2d 575

(1980).   If the defendant failed to take advantage of a

reasonable opportunity to escape, or of a reasonable opportunity

to avoid doing the acts without being harmed, she may not rely

on duress as a defense.    See id. at 410, 100 S. Ct. at 634-35;


                                - 3 -
United States v. Gordon, 526 F.2d 406, 407-08 (9th Cir. 1975).

Where it is properly shown, duress is a complete defense to a

crime. As has been stated,

           [t]he rationale of the defense is not that
           the defendant, faced with the unnerving
           threat of harm unless he does an act which
           violates the literal language of the
           criminal law, somehow loses his mental
           capacity to commit the crime in question.
           Rather, it is that, even though he has the
           mental state which the crime requires, his
           conduct which violates the literal language
           of the criminal law is justified because he
           has thereby avoided a harm of greater
           magnitude.

W. LaFave & A. Scott, Criminal Law 374 (3d ed. 1983).    Vague

threats of future harm, however alarming, will not suffice to

excuse criminal conduct.     See United States v. Patrick, 542 F.2d

381, 388 (7th Cir. 1975), cert. denied, 430 U.S. 931, 97 S. Ct.

1551, 51 L.Ed.2d 775 (1977); Gordon, 526 F.2d at 408.

     Cull maintains that she "participated in the events out of

fear for her life."   She further states in her brief that her

"past experiences with Bitner, Winkler, and Tibbs, and her

passive, nonviolent nature made [her] more susceptible to

duress."

     The record, however, shows that Cull knew of the plans to

assault Hanna when the group arrived at the house on Belmont

Avenue in her vehicle that she was driving.    She admitted that

she picked up a box cutter with knowledge of the intent of the

group to assault Hanna.    In her videotaped confession she


                                 - 4 -
acknowledged that after picking up Hanna, she and the other

women went to another person's home and stayed there for "45

minutes or so" before taking Hanna to Marsh Field.    She stated,

"I didn't kick her any more than 15 times."    In her confession,

she vividly described the attack including the cuts, kicks and

beatings with a belt.    She stated, "I hit her with [a belt] a

couple of times."    She acknowledged that they left Hanna at

Marsh Field but came back for her several minutes later.    They

put her into the trunk of Cull's car and Cull drove them all to

the Nash Road location.    While taking her to Nash Road, the

discussion among the women included killing Hanna, cutting off

her fingers and cutting out her tongue.    In the videotaped

confession Cull admitted that she "cut [Hanna] twice" and later

stated that one time was at Marsh Field and one time was at Nash

Road.    She acknowledged that the women came up with a "story" of

how Hanna had gotten out of the car earlier in the evening and

that none of them had seen her afterwards.    Not once during her

entire interview with the police detective did Cull mention fear

of or threats from Tibbs, Winkler or Bitner.    Furthermore, at

trial, testimony revealed that the trip from Marsh Field to Nash

Road took Cull, who was driving, directly past the Chesterfield

Police Headquarters.

        This record has no more than a scintilla of evidence, if

that, of Cull suffering any threat of immediate death or serious

bodily harm if she did not participate in the acts.

                                 - 5 -
Additionally, the record shows that she failed to take advantage

of a reasonable opportunity to escape her circumstances without

being harmed.    Apart from the fact that she was not compelled to

participate in the first place, she armed herself with a box

cutter with full knowledge of the group's intention and did not

abandon the group during the forty-five minute stop at another

home before the trip to Marsh Field.     On the way to Nash Road

she did not pull into the police station where she most

certainly could have abandoned the enterprise without fear of

harm.

        Based on this record, Cull was not entitled to the

instruction on duress, and the trial court did not err by

refusing it.

  III.     AVAILABILITY OF VIDEOTAPE TO JURY DURING DELIBERATIONS

        The videotaped confession was marked as Exhibit #32 and was

played for the jury.    At the time, the trial judge stated it

would be "marked and made part of the record" but would not "go

to the jury."    The Commonwealth immediately asked "to be heard

on that [issue] at break."    Following additional argument of

counsel, the trial judge stated, "I'll withhold ruling on it

right now.    It's marked as Commonwealth's Exhibit 32 for

identification.    If the jury should request the tape, then we'll

cross the bridge when we come to it."

        When the tape was played for the jury, it was admitted into

evidence.    As the Commonwealth's attorney noted, "We didn't

                                 - 6 -
offer it for the contents of its plastic and paper; we offered

it for the contents of the statement."   Irrespective of any

characterization made by the trial judge, the contents of the

tape were admitted into evidence when the jury viewed it.    The

decision to make the tape available to the jury during

deliberations was reserved by the trial judge, presumably,

because if the jury did not ask for the tape, he would not have

to rule on the question.   The jury did ask for the tape, and the

trial judge allowed it to be available to them during

deliberations.

     As we have previously stated,

               Code § 8.01-381 provides that upon the
          request of any party, the court shall
          instruct the jury that they may request
          exhibits for use during deliberations.
          Exhibits requested by the jury shall be sent
          to the jury room or otherwise be made
          available. [See] Code § 8.01-381. An
          out-of-court statement, whether written or
          recorded, which is introduced into evidence,
          is an "exhibit." Therefore, the jury was
          entitled to take [appellant's] recorded
          statement, which was introduced into
          evidence as an exhibit, into the jury room.

               We reject [appellant's] claim that
          permitting the jury to have a recorded
          statement by the accused in the jury room is
          prejudicial error because it creates a
          danger that, by replaying it, that part of
          the evidence will be overemphasized. This
          "risk" exists when a jury peruses any
          exhibit. The legislature has determined
          that the jury is entitled to have exhibits
          in the jury room. Nothing in the Virginia
          statutes or case law requires the trial
          judge to supervise the jury's review of
          evidence to "prevent overemphasis." The

                               - 7 -
             fact that a jury may dwell upon or emphasize
             any evidence, whether testimony or exhibits,
             is within the jury's purview in weighing and
             considering the evidence. Therefore, the
             trial court did not err by allowing the jury
             to have the exhibits, which included
             [appellant's] recorded statement, in the
             jury room during deliberations without court
             supervision.

Pugliese v. Commonwealth, 16 Va. App. 82, 90-91, 428 S.E.2d 16,

23 (1993).

                            IV.   CONCLUSION

     Finding no error, we affirm the convictions.

                                                            Affirmed.




                                  - 8 -
Benton, J., concurring.

        I concur in Parts I and II of the opinion.   I do not join

in Part III because I believe that an error was committed.     That

error, however, was harmless and does not require a reversal of

the convictions.    Therefore, I also join in the judgment

affirming the convictions.

                                   (A)

        During the testimony of a detective, the prosecutor

produced the videotape of the detective's interview with

Stephanie Cull and played it for the jury without objection.

The transcript, however, does not contain a stenographic record

of the words spoken on the videotape as it was played for the

jury.    After the jury saw and heard the videotape, the following

occurred:

             [PROSECUTOR]: The Commonwealth would offer
             the tape at this time as Commonwealth's
             exhibit.

             [JUDGE]: Marked as Commonwealth's 32.    It
             will be marked and made a part of the
             record. It will not go to the jury.

             [PROSECUTOR]: We would like to be heard on
             that at break.

             [JUDGE]:   Marked as Commonwealth's 32. . . .

        Later, when the prosecutor presented his argument

concerning the videotape, the following pertinent statements

were made:

             [PROSECUTOR]: . . . It's an exhibit. It is
             the demonstrative criminal agency in this


                                  - 9 -
           case, which is legitimately offered in
           evidence. And if it is in evidence, like
           any other exhibit, if the jury asks for it,
           they should be entitled to review it and
           examine it.

              We didn't offer it for the contents of
           its plastic and paper; we offered it for the
           contents of the statement. It would be akin
           to a written statement. If . . . the
           defendant made a written confession, The
           Court would have no problem with that going
           to the jury if they asked to see it. We
           would make the same motion with regard to
           the tape should it arise that the jury asks
           for it.

           [JUDGE]: I'll withhold ruling on it right
           now. It's marked as Commonwealth's 32 for
           identification. If the jury should request
           the tape, then we'll cross the bridge when
           we come to it.

     After all the evidence had been presented and during the

jury's deliberation, the jury requested to have the "transcript

of the tape."   The trial judge told the jury that he "cannot

give [the jury] the transcript . . . [because it] was not

received in evidence in this case."    When the jury asked for the

videotape "in lieu of the transcript," the judge ruled as

follows:

           I've considered Pugliese [v. Commonwealth,
           16 Va. App. 82, 428 S.E.2d 16 (1993)]. . . .
           It was The Court's intention that the
           videotape be made a part of the record in
           this case and I do acknowledge that the
           magic words received in evidence were never
           uttered by The Court, but the tape was
           marked for purposes of identification. The
           Court did, however, make the statement that
           the tape be made a part of the record and I
           think that is sufficient for receiving it in
           evidence. There has been a request for the

                              - 10 -
            tape. The tape will be played for the jury
            in the jury room.

               The defendant excepts to The Court's
            ruling and that exception is preserved for
            appellate purposes.

                                (B)

     By our Rules of Court "each exhibit offered in evidence,

whether admitted or not, and initialed by the judge" is part of

the trial record.   Rule 5:10(a)(3).    Thus, Rule 5:10(a)(3)

generally requires the trial judge to mark as an exhibit for

identification any document or item formally offered as evidence

by trial counsel.    See, e.g., State v. Onofrio, 425 A.2d 560,

566 (Conn. 1979) (discussing the reasons why the right to have a

proffered exhibit marked for identification is a broad right).

The purpose for marking an exhibit for identification is to

preserve it for the record.    See Kraus v. Newton, 558 A.2d 240,

241 (Conn. 1989) (holding that marking the exhibit preserves it

for the record and "provides an appellate court with a basis for

review").   Merely marking an exhibit for identification,

however, does not designate that the exhibit has been admitted

as evidence.    See Rule 5:10(a)(3).    Items that "were marked for

identification and are included in the record" do not become

evidence if "they were not received in evidence."      Bowers v.

Huddleston, 241 Va. 83, 85, 399 S.E.2d 811, 812 (1991).

     The trial judge acknowledged that he had marked the

videotape only for identification.      Although it was marked only


                               - 11 -
for identification, the jury had seen and heard the entire

videotape, without objection, during the trial.    Thus, the oral

and visual contents of the videotape became evidence that the

jury could consider.    That circumstance, however, does not make

the videotape itself evidence.    Cf. Scott v. Greater Richmond

Transit Co., 241 Va. 300, 304-05, 402 S.E.2d 214, 218 (1991)

(holding that a statement of a past recollection recorded may be

read to the jury but cannot be received in evidence as an

exhibit when proffered by the offering party).    Moreover, when

the videotape was played in the trial court for the jury, the

court reporter did not make a stenographic record of its

contents.   Thus, the record before us contains no transcription

of what the jury heard and contains no exhibit admitted in

evidence during the trial of that videotape.     Cf. Matson v.

Wilco Office Supply & Equip., 541 So.2d 767, 769 (Fla. App.

1989) (holding that when a videotape is played at trial it is

evidence that must be made a part of the record on appeal either

by a stenographic record of the evidence presented at trial or

by the videotape being admitted in evidence).

     For these reasons, I would hold that the trial judge erred

in giving the jury the videotape, which was marked only for

identification in the record and which was not properly admitted

in evidence at trial.    See Brittle v. Commonwealth, 222 Va. 518,

522, 281 S.E.2d 889, 890 (1981) (holding that a jury improperly

was permitted to see photographic exhibits that were not

                               - 12 -
admitted in evidence); see also Wilson v. Wooldridge, 118 Va.

209, 216, 86 S.E. 872, 874 (1915) (holding that a motion to make

a document an exhibit to be considered by a jury was not timely

when it was made "[a]fter all the evidence had been introduced

in the case and the jury had been instructed as to the law").

As other courts have held, an exhibit that was not admitted in

evidence by the trial judge is not "evidence."   See Bowman v.

Weill Const. Co., 502 So.2d 133, 136-37 (La. App. 1987) (noting

that "[i]tems of evidence which are physically placed in the

record . . . , but which are not properly introduced and

admitted in evidence by the trial court, may not be considered

by any tribunal in deciding the merits of the case"); see also

Commonwealth, Dept. of Transp. v. McCrea, 526 A.2d 474, 475 (Pa.

Commw. Ct. 1987) (holding that "[i]t is fundamental and

essential that, at trial, a document must be offered to and

admitted by the court before it may be considered evidence;

merely having the document marked as an exhibit, without more,

is insufficient").

                               (C)

     The record clearly establishes that after the taking of

evidence had ended and while the jury was conducting its

deliberations, the trial judge ruled, in effect, that the

videotape, which earlier was merely marked for identification,

would be admitted as evidence and sent to the jury.   Although I

believe that ruling came too late, I also believe that in the

                             - 13 -
context of this case, the error was harmless.      See Brittle, 222

Va. at 522, 281 S.E.2d at 890 (holding that error is harmful if

"an accused in a criminal case . . . has been prejudiced by

receipt of the information").    The videotape contained nothing

that the jury had not seen or heard in open court.     Indeed, the

transcript of the trial reflects that the entire videotape was

played in open court.   No claim is made that the videotape

contained extraneous material that was not previously seen by

the jury.   Obviously, if the videotape had been admitted in

evidence as an exhibit during the trial, the jury could have had

use of it during its deliberations.      See Code § 8.01-381.

     Cull contends that if she had known that the judge would

admit the videotape as evidence, she would have testified at

trial.   She contends she was prejudiced by the untimely ruling,

which did not allow her the opportunity to testify.     Because the

jury saw and heard the entire videotape in the Commonwealth's

case-in-chief, that contention lacks persuasion.     Cull had the

opportunity to testify at trial after the videotape was played

in open court.

     For these reasons, I would hold that the error was harmless

and affirm the convictions.




                                - 14 -
