                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Overton
Argued at Chesapeake, Virginia


ANDRE BARBOSA
                                         MEMORANDUM OPINION * BY
v.   Record No. 2577-00-1              JUDGE ROSEMARIE ANNUNZIATA
                                              JULY 16, 2002
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Thomas S. Shadrick, Judge

          Steven M. Oser for appellant.

          Richard B. Smith, Senior Assistant Attorney
          General, (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     On October 23, 2000, Andre Barbosa was convicted at a jury

trial of aggravated malicious wounding, in violation of Code

§§ 18.2-51.2(A) and 18.2-10, grand larceny, in violation of Code

§ 18.2-95, and use of a firearm in the commission of aggravated

malicious wounding, in violation of Code § 18.2-53.1.     He

received a sentence of 25 years, with 18 years suspended, for

malicious wounding, three years for the firearm charge, and a

suspended three-year sentence for grand larceny.

     Barbosa appeals his convictions on the ground that the

trial court erroneously denied his motion to present a jury


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
instruction on self-defense.    He contends that the evidence at

trial supported an instruction of self-defense.      The

Commonwealth contends that the defendant did not preserve this

question at trial.   See Rule 5A:18.      Assuming, without deciding,

that the issue was properly preserved, we find the court did not

err in refusing to instruct the jury on the law of self-defense

and affirm Barbosa's conviction.

                               Analysis

          Because the trial court refused to grant the
          instruction proffered by the accused, we
          view the facts in the light most favorable
          to the defendant. However, an instruction
          is proper only if supported by more than a
          scintilla of evidence. If the instruction
          is not applicable to the facts and
          circumstances of the case, it should not be
          given. Thus, it is not error to refuse an
          instruction when there is no evidence to
          support it.

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

(2001) (citations omitted).    If "the evidence [at trial] raised

factual issues regarding the reasonableness of the force used

[or] the reasonableness of the perceived threat," it is error to

refuse a proffered self-defense instruction that correctly

states the law.   Foster v. Commonwealth, 13 Va. App. 380, 384,

412 S.E.2d 198, 200 (1991).

     "[T]he law of self-defense is the law of necessity."       Foote

v. Commonwealth, 11 Va. App. 11, 16, 396 S.E.2d 851, 856 (1990).

Therefore, to support an instruction for self-defense, the

accused must demonstrate that he "exercis[ed] reasonable force

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to repel the assault."    Id.   "[T]he amount of force used to

defend oneself must not be excessive and must be reasonable in

relation to the perceived threat."       Foster, 13 Va. App. at 383,

412 S.E.2d at 200.   "The privilege to use such force is limited

by the . . . well recognized rule that a person 'shall not,

except in extreme cases, endanger human life or do great bodily

harm.'"    Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382

S.E.2d 24, 26 (1989) (quoting Montgomery v. Commonwealth, 98 Va.

840, 843, 36 S.E. 371, 372 (1990)).      "Thus, . . . [one] who

expects to be attacked should first employ the means in his

power to avert the necessity of self-defence, and, until he has

done this, his right of self-defence does not arise."       Hash v.

Commonwealth, 88 Va. 172, 192, 13 S.E. 398, 405 (1891).      "The

'bare fear' of serious bodily injury, or even death, however

well-grounded, will not justify the taking of human life."

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

(2001) (citations omitted).

     In this case, Barbosa contends that he was entitled to a

self-defense instruction because there was evidence at trial

that he "fear[ed] for his physical safety" and that he believed

that he was about to be brutally beaten by the victim and his

friends.   The evidence, however, viewed in the light most

favorable to the defendant, makes manifest that Barbosa's use of

deadly force was not warranted by the perceived impending attack

by the victim.    See id. at 729, 553 S.E.2d at 736.

                                 - 3 -
       According to Barbosa, the following preceded his admitted

shooting of the victim in the abdomen:

            [The victim] said – He said, Come here, and
            I started walking towards him; and he was
            like – he started arguing with me; and I
            waved my hand; and I said, Listen – I was
            like, I don't want to argue with you; and he
            was like . . . What are you going to do
            about it? And I was like, Listen, chill;
            and I looked at [my friend] Tom; and he was
            just looking to me to see what was going on.
            You couldn't even tell that we were arguing.
            The dude was just saying mean things. He
            wasn't raising his fists or anything, and
            then he got real close and like real close
            like his face right here; and he said, What
            are you going to do about it? Huh? Huh?

            When he said that, all his friends
            surrounded me; and I just took a step back;
            and I lifted up my shirt; and I put it
            behind the handle [of the gun]; and I said,
            Listen, I got a gun on me. I'm not going to
            fight you.

            And when I did that, his friend grabbed him.
            . . . [The victim's friend, Trini,] said
            Listen, man, chill; and [the victim] told
            his friend F that; and he was like, What are
            you going to do with that? Huh? And he got
            real close – close to me like my chest, and
            I backed up, and I pulled out the gun; and I
            said, Listen, chill; and I put it to him;
            and I was like, Stop; and he was like, You
            ain't going to do nothing; and he tried to
            rush forward; and he was bumping the gun;
            and that's when I was just scared; and I
            took a step back; and I just squeezed the
            trigger; and I just fired.

       He further testified that he was afraid of receiving a

"pretty bad" gang beating as he had in the past.   During an

earlier incident, he had suffered a "busted face," and a broken

rib.   However, he admitted that no one had touched him, that the

                                - 4 -
victim did not have a weapon, that he was the only one involved

who had a gun and that the victim had made no threats although

stating that he wasn't afraid of Barbosa or his gun.   He also

acknowledged that he told his friend Tom Kestler, who was

present during the incident, "I probably shouldn't have done

that," suggesting there was no reason to use a gun to defend

himself.

     Under these facts, we hold, therefore, that it was not

"necessary" for Barbosa to use deadly force to avert the

perceived impending "gang beating."    The fact that he was

surrounded by Serna and his friends and that Serna "bumped into

his gun," stating he was not afraid, does not constitute an

"overt act indicative of imminent danger."    See Vlastaris v.

Commonwealth, 164 Va. 647, 651-52, 178 S.E. 775, 776-77 (1935)

(holding that accused's fear for his life was without foundation

because victim made no overt act at the time of the shooting).

Furthermore, we hold that the deadly force Barbosa used in the

circumstances of this case was not reasonable and proportionate.

See Hash, 88 Va. at 192, 13 S.E. at 405 ("The party making the

defence may use no instrument and no power beyond what will

simply prove effectual."); Foote, 11 Va. App. at 16, 396 S.E.2d

at 856 (holding that an accused may claim self-defense only if

the force employed against his potential attacker was necessary

to repel the assault).   Accordingly, Barbosa did not present a

sufficient evidentiary predicate for a self-defense instruction.

                               - 5 -
See Foster, 13 Va. App. at 383, 412 S.E.2d at 200 ("[T]he amount

of force used to defend oneself must not be excessive and must

be reasonable in relation to the perceived threat.").

                                                        Affirmed.




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