                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia


AKBAR ABDUL KARIM BILAL
                                            MEMORANDUM OPINION * BY
v.   Record No. 0772-01-4                JUDGE JEAN HARRISON CLEMENTS
                                              DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Leslie M. Alden, Judge

            Jeanne E. Klapps (Michael C. Sprano,
            Assistant Public Defender; Office of the
            Public Defender, on brief), for appellant.

            Jennifer R. Franklin, Assistant Attorney
            General (Randolph A. Beales, Attorney
            General, on brief), for appellee.


     Akbar Abdul Karim Bilal was convicted in a jury trial of

assault and battery.    On appeal, he contends the trial court

erred in refusing to give his requested instruction on mutual

combat to the jury.    Finding no error, we affirm the conviction.

                            I.   BACKGROUND

     On September 5, 2000, Bilal returned to his home with his

wife and grandson.    Upon his arrival, he encountered his

daughter's boyfriend, Ahmad Miles, outside of the apartment

building.

     Miles, a witness for the Commonwealth, testified Bilal

approached him and accused him of keying his car and disrespecting


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.

                                 - 1 -
his wife.   Miles stated he denied keying Bilal's car and

disrespecting his wife and started to walk away from the apartment

building, but Bilal grabbed him by the side of the head, slammed

him against a wall and mailbox several times, and shoved him into

some bushes, causing him to fall on his back.   According to Miles,

who, at five feet seven inches tall and one hundred and twenty

pounds in weight, was "considerably smaller" than Bilal, Bilal

then sat on his chest, pinning his arms on the ground with his

knees, and punched him in the head and face approximately seven

times.    Miles testified that, while on top of him, Bilal

threatened to kill him and told him to never "mess with [his]

family again."    According to Miles, Bilal then got off of him, at

which point Miles jumped up and ran away from Bilal.
     Miles testified he suffered a severe cut on his ear and had a

tooth knocked out during the altercation.   Miles further testified

he never struck or threatened to strike Bilal and never gave Bilal

permission to strike or otherwise attack him.

     The police officer who responded to the incident, testified

Miles was bleeding from the wound where his tooth had been knocked

out and from his ear.   The officer further testified he observed

no injuries to Bilal.

     Karimah Rasheedah Bilal, Bilal's wife, testified on behalf of

her husband.   She stated that, when her husband approached the

apartment building, Miles started talking to him and an argument

ensued.   According to Mrs. Bilal, Miles "started gesturing . . .

with his hands, and he was . . . approaching, and he got very

close up on [Bilal], swinging and gesturing his hands."      Mrs.

Bilal stated Miles then shoved Bilal with both hands and

                                - 2 -
subsequently grabbed him by the shoulders.    Bilal then grabbed

Miles and the two men, according to Mrs. Bilal, struggled "in

front of the building, and down the stairs, and . . . through a

briar patch," at which point they fell, with Bilal landing on top

of Miles.     Mrs. Bilal testified Bilal told Miles to calm down and

that "he really didn't want this type of exchange to happen."

After approximately three minutes, the two men got up and Miles

went to the parking lot, where, according to Mrs. Bilal, "he

continued to scream obscenities" at them.     Mrs. Bilal testified

Bilal never punched Miles or threw him against a wall or mailbox.
        Bilal was charged with unlawful wounding and tried before a

jury.    Following the presentation of evidence at trial, the jury

was instructed on both unlawful wounding and the lesser-included

offense of assault and battery.    Bilal, who did not testify at

trial, proffered three jury instructions propounding his

alternative theories of defense:    self-defense without fault,

self-defense with fault, and mutual combat.    The trial court

granted Bilal's instruction on self-defense without fault but

denied the other two.

        Bilal's proposed instruction on mutual combat, Instruction M,

read as follows:

                  If you believe from the evidence that
             Akbar Bilal and Ahmad Miles were involved in
             mutual combat, then you shall find Mr. Bilal
             not guilty. In order for combat to have been
             mutual it must have been voluntary and
             mutually entered into by both parties.

In denying Instruction M, the trial court ruled it was legally

inappropriate and unsupported by the evidence.

        The jury subsequently found Bilal guilty of the


                                 - 3 -
lesser-included offense of assault and battery, and this appeal

followed.

                             II.    ANALYSIS

     The sole issue on appeal is whether the trial court erred in

refusing to give Instruction M to the jury.

     "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)).       "A defendant is entitled to

have the jury instructed only on those theories of the case that

are supported by evidence."    Connell v. Commonwealth, 34 Va. App.

429, 436, 542 S.E.2d 49, 52 (2001).         "[A]n instruction is proper

only if supported by more than a scintilla of evidence."

Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736

(2001).     In reviewing a trial court's refusal to give a requested

instruction, "we view the evidence in the light most favorable to

the proponent of the instruction."         Turner v. Commonwealth, 23

Va. App. 270, 275, 476 S.E.2d 504, 507 (1996), aff'd, 255 Va. 1,

492 S.E.2d 447 (1997).

     On appeal, Bilal argues the requested instruction is proper

because it propounds a legally valid defense to assault and

battery and is supported by the evidence.         He maintains that, on

the basis of his wife's testimony at trial, "[t]here was more than

a mere scintilla of evidence in this case that the complaining

witness consented to being grabbed and pushed by the appellant."

Thus, he asserts, the trial court erred in refusing to grant

                                   - 4 -
Instruction M.

     Assuming, without deciding, that mutual combat may be a

defense to a charge of assault and battery, we hold nonetheless

that the evidence presented in this case, even viewed in the light

most favorable to Bilal, does not warrant a mutual combat

instruction.   In particular, the record contains no evidence that

Miles and Bilal were engaged in mutual combat.

     "For combat to be 'mutual,' it must have been voluntarily

and mutually entered into by both . . . parties to the affray."
Lynn v. Commonwealth, 27 Va. App. 336, 356, 499 S.E.2d 1, 10

(1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).     Here, Bilal's

evidence clearly established that Bilal did not enter into the

physical confrontation with Miles mutually or voluntarily.     Mrs.

Bilal testified the altercation started when Miles shoved and

then grabbed Bilal.   Following that attack, the two men struggled

"in front of the building, and down the stairs, and . . . through

a briar patch," at which point Bilal ended up on top of Miles.

Bilal then attempted to calm Miles and end the confrontation,

telling Miles that "he really didn't want this type of exchange

to happen."

     The only reasonable conclusion that can be drawn from this

evidence is that Bilal did not willingly enter into the affray,

but did so solely to defend himself after being shoved and

grabbed by Miles.   As we noted in Smith v. Commonwealth, 17

Va. App. 68, 72-73, 435 S.E.2d 414, 417 (1993) (quoting Harper v.
Commonwealth, 165 Va. 816, 820, 183 S.E. 171, 173 (1936)):

          "One who is assaulted may and usually does
          defend himself, but the ensuing struggle
          cannot be accurately described as a mutual

                               - 5 -
          combat." Otherwise, "every fight would be a
          mutual combat."

     Hence, the evidence fails to support Bilal's theory of

mutual combat.   We conclude, therefore, that the trial court did

not err in refusing to give Instruction M to the jury.   See Lea v.

Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479-80 (1993)

(holding that "[a]n instruction that is not supported by the

evidence . . . is properly refused").

     Accordingly, we affirm Bilal's conviction.
                                                         Affirmed.




                               - 6 -
