                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia


ROBERT LEE BANKS
                                           MEMORANDUM OPINION * BY
v.           Record No. 2990-95-3           JUDGE RICHARD S. BRAY
                                               FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF WISE COUNTY
                         J. Robert Stump, Judge
             (Anthony E. Collins; Collins & Collins, on
             brief), for appellant. Appellant submitting
             on brief.

             Kathleen B. Martin, Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     Robert Lee Banks (defendant) was convicted by a jury of

voluntary manslaughter, assault and battery, and possession of

marijuana.    Defendant was jointly tried with Eddie Perry (Perry),

pursuant to Code § 19.2-262.1.      On appeal, defendant complains

that the trial court erroneously (1) limited Perry and himself to

three peremptory strikes each, (2) instructed the jury on the law

of self-defense, (3) admitted a staged photograph into evidence,

and (4) denied his motion for a mistrial.     Defendant also

challenges the sufficiency of the evidence to support the

voluntary manslaughter conviction.     Finding no error, we affirm

the convictions.

     The parties are fully conversant with the record, and this
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                        PEREMPTORY STRIKES

     Defendant first argues that he and Perry were each entitled

to exercise four peremptory strikes pursuant to Code § 19.2-262.

 However, in accordance with Adkins v. Commonwealth, ___ Va. App.

___, ___, ___ S.E.2d ___, ___ (1997), defendant and Perry

together were statutorily assured no more than four peremptory

strikes.   Because the trial court permitted a total of six

peremptory challenges, we find no error.
                     SELF-DEFENSE INSTRUCTION

     Defendant next complains that portions of jury instruction

"No. 3" incorrectly suggested to the jury that an instigator of

combat may never claim self-defense, despite retreat, an

attendant expression for peace, and reasonable belief that he was

threatened with serious bodily harm or death. 1

     In reviewing a challenged jury instruction, our

responsibility "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.
     1
      For the first time on appeal, defendant contends that the
instruction also implied that words alone were sufficient to
justify an attack upon defendant by Adkins, thereby affording
Adkins a different standard of provocation than defendant.
However, Rule 5A:18 precludes our consideration of an argument
not presented to the trial court. See Deal v. Commonwealth, 15
Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).




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499, 503, 290 S.E.2d 856, 858 (1982)).   "A party is entitled to

have the jury instructed according to the law favorable to his or

her theory of the case if evidence in the record supports it."

Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200

(1991).   In undertaking this issue, we view the evidence in the

light most favorable to the party offering the instruction.      See

id.
           The general rule is that one cannot provoke
           an attack, bring on a combat, and then slay
           his assailant, and claim exemption from the
           consequences on the ground of self-defense.
           No one can avail himself of the plea of
           self-defense, in a case of homicide, . . .
           when the defendant was himself the aggressor,
           and willfully brought on himself, without
           legal excuse, the necessity for the killing
            . . . . He who provokes a personal
           encounter, in any case, thereby disables
           himself from relying on the plea of
           self-defense in justification of a blow which
           he struck during the encounter.

Sims v. Commonwealth, 134 Va. 736, 761-62, 115 S.E. 382, 390

(1922) (citation omitted).   Moreover, "'[w]hen two persons enter

willingly into a combat, not for self protection but to gratify

their passion by inflicting injury upon each other, the doctrine

of self-defense cannot be invoked on behalf of either.'"     Jones

v. Commonwealth, 196 Va. 10, 14, 82 S.E.2d 482, 485 (1954)

(citation omitted).

      Here, several witnesses testified that defendant stopped his

automobile adjacent to vehicles occupied by the victims, and

defendant's passenger "held up a knife and said that he had

something there that would solve everything."   Defendant then



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drove a short distance away, stopped, exited the vehicle, and ran

toward the victims.    Thomas Gross approached the onrushing

defendant, placed his hands on defendant's shoulders in a

conciliatory gesture, and requested him to return to his car.

Defendant then stabbed Gross and thereafter stabbed and killed

Adkins while the men attempted to disarm defendant.

     From such evidence, the jury could have concluded that

defendant armed himself with a deadly weapon and "solely provoked

the encounter" with the victims, thereby precluding a claim of

self-defense and justifying the inclusion of this principle of

law in the challenged instruction.      Other evidence would have

permitted an inference that defendant and Allen Adkins ran toward

one another and engaged in mutual combat, a circumstance also

precluding a claim of self-defense and justifying a related

instruction.   We, therefore, find that the challenged instruction

was supported by the evidence and correctly set forth the

applicable law.
                  ADMISSIBILITY OF STAGED PHOTOGRAPH

     "The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be 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).

"The factual determinations which are necessary predicates to

rulings on the admissibility of evidence and the purposes for

which it is admitted are for the trial judge and not the jury."




                                - 4 -
Rabeiro v. Commonwealth, 10 Va. App. 61, 64, 389 S.E.2d 731, 732

(1990).   On appeal, such factual determinations are given "the

same weight as is accorded a finding of fact by the jury."        Id.

at 64, 389 S.E.2d at 733.
          A staged photograph purporting to depict the
          circumstances existing at the time of an
          event . . . is in the nature of a test or
          experiment which is offered for the same
          purpose. Accordingly, the party who offers
          such evidence must show that the
          reconstruction or recreation is substantially
          similar, although not necessarily identical,
          to the actual event in all of its essential
          particulars.

Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992)

(citation omitted).

     In this instance, an eyewitness testified that the disputed

photo was "substantially similar to the way [she] saw" the

events.   After careful consideration, the trial court admitted

the photograph and, at defendant's request, instructed the jury

that the photo was admitted for "demonstrative purposes only."

When the witness later noted minor differences between the

photograph and events, an in-court demonstration and further

testimony clarified the variations for the jury.     Under such

circumstances, we are unable to conclude that the trial judge

abused his discretion in admitting the photograph.
    MISTRIAL MOTION BASED ON REFERENCE TO O. J. SIMPSON TRIAL

     It is well established that arguments not presented timely

to the trial court are deemed waived on appeal, absent good cause

or to attain the ends of justice.      See, e.g., Deal v.



                               - 5 -
Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).

The comment in issue was uttered by the court during the

Commonwealth's redirect examination of a witness, but defendant

did not request a mistrial until after the conclusion of

recross-examination by a codefendant.   Further, defendant never

requested a cautionary instruction.    We, therefore, decline to

review this issue on appeal.   Cf. Cheng v. Commonwealth, 240 Va.

26, 38-39, 393 S.E.2d 599, 605-06 (1990) (error assigned to

prosecutor's improper comment or conduct barred unless raised in

timely motion for cautionary instruction or mistrial).
     SUFFICIENCY OF EVIDENCE TO PROVE VOLUNTARY MANSLAUGHTER

     Lastly, defendant challenges the sufficiency of the evidence

to support the conviction for voluntary manslaughter.    Under

familiar principles of appellate review, we examine the evidence

in the light most favorable to the Commonwealth, granting to it

all reasonable inferences fairly deducible therefrom.    See

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,

721 (1988).   The jury's verdict will not be disturbed unless

plainly wrong or without evidence to support it.    See id.    The

credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact finder's determination.    See Long v. Commonwealth, 8

Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).   The fact finder

is not required to believe the entire testimony of a witness, but

may accept and reject portions in assessing such evidence.       See




                               - 6 -
Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606

(1973).

     Defendant and the victim Adkins had several disagreements

within hours of the homicide.   Immediately prior to the offense,

defendant again confronted Adkins, stabbing Gross when Gross

attempted to prevent an altercation.    As Gross and Adkins

wrestled with defendant in an effort to disarm him, defendant

stabbed and killed Adkins.   Gross and Adkins had no weapons.

     Such evidence was sufficient to support defendant's

conviction of voluntary manslaughter, the unlawful killing of

another without malice, actual or implied, upon a sudden heat,

reasonable provocation, or in mutual combat.    See Moxley v.

Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393 (1953)

(quoting Read v. Commonwealth, 63 Va. (22 Gratt.) 924, 937-38

(1872)).

     Although defendant contended that Adkins was the aggressor

and that he acted in self-defense, the jury was not required to

believe this testimony and could infer that defendant was lying

to conceal guilt.   See Rollston v. Commonwealth, 11 Va. App. 535,

547, 399 S.E.2d 823, 830 (1991).    Any alleged inconsistencies in

the Commonwealth's evidence were circumstances weighed by the

jury in finding defendant guilty of voluntary manslaughter.

     Accordingly, we affirm the convictions.

                                                         Affirmed.




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