                                COURT OF APPEALS OF VIRGINIA


Present: Judges McClanahan, Beales and Senior Judge Willis
Argued at Salem, Virginia


RALPH EUGENE TAYLOR
                                                              MEMORANDUM OPINION * BY
v.      Record No. 0753-09-3                               JUDGE ELIZABETH A. McCLANAHAN
                                                                    MARCH 23, 2010
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
                                 Humes J. Franklin, Judge

                  John Gregory, Jr. (Mark Perdue; St. Clair & Perdue, on brief), for
                  appellant.

                  Richard B. Smith, Special Assistant Attorney General (William C.
                  Mims, Attorney General, on brief), for appellee.


        Ralph Eugene Taylor appeals from his conviction for assault and battery and argues the trial

court erred in denying his proposed jury instructions on self-defense and duress. We affirm the

judgment of the trial court.

                                            I. BACKGROUND

        “When reviewing a trial court’s refusal to give a proffered jury instruction, we view the

evidence in the light most favorable to the proponent of the instruction,” in this case Taylor.

Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002) (citation omitted). See

also Commonwealth v. Cary, 271 Va. 87, 91, 623 S.E.2d 906, 907 (2006); Commonwealth v.

Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001); Commonwealth v. Alexander, 260 Va.

238, 240, 531 S.E.2d 567, 568 (2000). Taylor and his wife, Betina, were separated and both

subject to a mutual restraining order prohibiting contact between them except to exchange their

children at the sheriff’s office. After their separation, Betina remained in their home in Henry

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
County and Taylor moved to Alleghany County to live with his brother. Both Taylor and Betina

had access to a “camp” in Alleghany County on which a trailer and woodshed were located. 1 On

the day of the assault, Taylor was at the camp drinking beer. At about 10:00 p.m., Betina and her

boyfriend, Charles Wright, drove into the camp. 2 Wright got out of his vehicle and unlocked the

gate to the camp, pulled his vehicle through the gate, and locked the gate back before pulling his

vehicle in front of the camp. As Wright exited his vehicle, Taylor overheard Wright tell Betina

to get him his gun because “if that [sob] comes through the gate, he’s dead, this is posted

property.” Upon hearing this, Taylor grabbed a baseball bat and began beating Wright with the

bat. Wright retrieved his gun and fired five gunshots over the top of Taylor’s head (missing him)

as Taylor ran away. Taylor was charged with aggravated malicious wounding and found guilty

of assault and battery.

                                         II. ANALYSIS

       Taylor contends the trial court erred in rejecting his proposed jury instructions on

self-defense and duress. 3 “As a general rule, the matter of granting and denying instructions

does rest in the sound discretion of the trial court.” Cooper v. Commonwealth, 277 Va. 377,

381, 673 S.E.2d 185, 187 (2009). “[A]n instruction is proper only if supported by more than a


       1
          Although Taylor contends on appeal he lived at the camp and “stayed with his brother
on occasion,” he testified at trial he moved to his brother’s home in Alleghany County after the
separation from Betina and “never moved out.” Although Betina testified she owned the camp
and Taylor was not allowed to be there, Taylor testified he was permitted to be at the camp and
visited it regularly. We view the evidence in the light most favorable to Taylor. See Vaughn,
263 Va. at 33, 557 S.E.2d at 221.
       2
          Considerable testimony was presented at trial on whether Taylor knew Betina and
Wright were coming to the camp, whether Betina and Wright knew Taylor would be at the camp,
and whether either Taylor or Betina were prohibited from being at the camp due to the mutual
restraining order. We find resolution of these questions unnecessary to our holding.
       3
         The question presented also asks whether Taylor’s proposed instruction on right to arm
should have been granted. The right to arm instruction would have told the jury “no inference of
malice can be drawn from the fact that [Taylor] armed himself.” Since the jury convicted Taylor
of assault and battery, which does not require malice, then, as the appellant concedes, this issue
is moot. See Mackall v. Commonwealth, 236 Va. 240, 257, 372 S.E.2d 759, 770 (1988).
                                               -2-
scintilla of evidence.” Sands, 262 Va. at 729, 553 S.E.2d at 736 (citing Commonwealth v.

Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998)). “Although an instruction correctly states

the law, if it is not applicable to the facts and circumstances of the case, it should not be given.”

Hatcher v. Commonwealth, 218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978). “Thus, it is not

error to refuse an instruction when there is no evidence to support it.” Sands, 262 Va. at 729,

553 S.E.2d at 736; see also LeVasseur v. Commonwealth, 225 Va. 564, 590-92, 304 S.E.2d 644,

658-59 (1983).

                                          A. Self-Defense 4

       Self-defense is an affirmative defense, and in a making such a plea, the appellant admits

the assault was intentional and carries the burden of producing evidence of “justification or



       4
          Taylor proposed two jury instructions on self-defense. One instruction was on
justifiable use of force, applicable if the jury found Taylor was without fault:

                  If you believe that the defendant was without fault in
               provoking or bringing upon the difficulty, and that the defendant
               reasonably feared, under the circumstances as they appeared to
               him, that he was in danger of harm, then the defendant had the
               right to use such force as was reasonably necessary to protect
               himself from the threatened harm. If you further believe that the
               defendant used no more force than was reasonably necessary to
               protect himself from the threatened harm, then you should find
               the defendant not guilty.

The other self-defense instruction was on excusable use of force, applicable if the jury found
Taylor was, at least in part, at fault:

                  If you believe from the evidence that the defendant was to some
               degree at fault in provoking or bringing upon the difficulty, and if
               you further believe that when attacked:

               (1) He retreated as far as he safely could under the circumstances;
               (2) In a good faith attempt to abandon the fight; and
               (3) Made known his desire for peace by word or act; and
               (4) He reasonably feared, under the circumstances as they
                   appeared to him, that he was in danger of bodily harm; and
               (5) He used no more force than was reasonably necessary to
                   protect himself from the threatened harm, then you should find
                   the defendant not guilty.
                                                -3-
excuse that raises a reasonable doubt in the minds of the jurors.” McGhee v. Commonwealth,

219 Va. 560, 562, 248 S.E.2d 808, 810 (1978).

               Justifiable self-defense arises when the defendant is completely
               without fault. In such a case, the defendant need not retreat, but is
               permitted to stand his ground and repel the attack by [reasonable]
               force, including deadly force, if it is necessary. Excusable
               self-defense arises when the defendant, who was at some fault in
               precipitating the difficulty, abandons the fight and retreats as far as
               he safely can before he attempts to repel the attack.

Foote v. Commonwealth, 11 Va. App. 61, 67-68, 396 S.E.2d 851, 855 (1990) (citations omitted);

see also Avent v. Commonwealth, 279 Va. 175, 199, 688 S.E.2d 244, ___ (2010); Yarborough

v. Commonwealth, 217 Va. 971, 975, 234 S.E.2d 286, 290 (1977).

       When claiming justifiable or excusable self-defense, the evidence must show “some overt

act indicative of imminent danger at the time [of the assault].” Vlastaris v. Commonwealth, 164

Va. 647, 652, 178 S.E. 775, 776 (1935). “In other words, a defendant must wait till some overt

act is done.” Sands, 262 Va. at 729, 553 S.E.2d at 736 (citation and internal quotation marks

omitted) (emphasis added). And imminent danger means “an immediate, real threat to one’s

safety.” Id. (citation and internal quotation marks omitted). The “bare fear” of serious bodily

injury or even death, however well grounded, will not justify an assault “by way of prevention.”

Vlastaris, 164 Va. at 651, 178 S.E. at 776. A plea of self-defense is a plea of necessity and, in

determining whether a trial court should have instructed the jury on a plea of self-defense, the

question is whether “the circumstances immediately surrounding the [assault], specifically, the

actions of the [victim] at that time were sufficient to create a reasonable belief of an imminent

danger which had to be met.” Sands, 262 Va. at 730, 553 S.E.2d at 737 (emphasis added).

       The trial court properly refused the instructions on self-defense because there was no

evidence Wright committed an overt act indicative of immediate danger to justify or excuse




                                                -4-
Taylor’s assault. 5 According to Taylor’s own testimony, before Taylor began assaulting Wright,

Wright did not display a gun or take any action against Taylor. Wright neither spoke to Taylor

nor acknowledged Taylor’s presence before Taylor hit Wright. Indeed, as Taylor admitted,

Wright did not even know Taylor was there before Taylor began his assault. Taylor testified he

acted out of fear based on previous phone threats by Wright to “blow [Taylor’s] brains out” and

Wright’s statement to Betina to get him his gun because “if that [sob] comes through the gate,

he’s dead.” However, “words alone, no matter how grievous or insulting, are never justification

for assault by force or violence.” Harper v. Commonwealth, 196 Va. 723, 727, 85 S.E.2d 249,

252 (1955); see Vlastaris, 164 Va. at 649-52, 178 S.E. at 776-77 (where defendant shot victim

after victim yelled “stop, you b------, I’ll kill you now,” the most the evidence showed was a

present threat to take defendant’s life, not an overt act justifying a plea of self-defense). As this

Court stated in Graham v. Commonwealth, 31 Va. App. 662, 672, 525 S.E.2d 567, 572 (2000),

“[s]elf-defense . . . is a defense to an act of violence that repels violence directed at the

defendant.” (Emphasis added).

        Quite simply, Taylor was not repelling any act of violence directed toward him.

Therefore, the trial court did not commit error in refusing to grant the instructions on

self-defense. Compare Sands, 262 Va. at 730, 553 S.E.2d at 737 (where evidence proved

husband beat wife over a two-year period including on the date she killed him and wife

reasonably believed she was in danger of serious bodily harm or death, husband’s assault on wife

had ended prior to the killing and there was no evidence of any overt act indicating imminent

danger by husband to justify a self-defense instruction), with Cary, 271 Va. at 101, 623 S.E.2d at

914 (where boyfriend ceased his assault on Cary and went into the bathroom, there was more


        5
          Taylor’s contention the trial court rejected his jury instructions on self-defense before
he presented his evidence is wholly without merit. The pages in the record Taylor cites to
support this contention relate to the trial court’s exclusion of witness testimony. The record
reflects the trial court ruled on the jury instructions after the completion of all evidence when the
parties tendered their proposed jury instructions.
                                                   -5-
than a scintilla of evidence to show an overt act of imminence to justify a self-defense instruction

since boyfriend was advancing toward Cary with the intent to resume his physical attack). 6

                                             B. Duress 7

       “Duress excuses criminal behavior ‘where the defendant shows that the acts were the

product of threats inducing a reasonable fear of immediate death or serious bodily injury.’”

Arnold v. Commonwealth, 37 Va. App. 781, 787, 560 S.E.2d 915, 918 (2002) (quoting Graham,

31 Va. App. at 674, 525 S.E.2d at 573); see also Pancoast v. Commonwealth, 2 Va. App. 28, 33,

340 S.E.2d 833, 836 (1986). “The defendant must show that the threat, which is ‘specifically


       6
          Although Taylor argues the issue of whether he was at fault was a question for the fact-
finder, that argument ignores the requirement that Taylor face an overt act threatening imminent
and immediate harm to justify the granting of either self-defense instruction he offered.
Nevertheless, the jury was instructed to find Taylor guilty of assault and battery if they found
beyond a reasonable doubt that Taylor willfully touched Wright “without legal excuse or
justification.” In finding Taylor guilty of assault and battery, the jury necessarily found Taylor
acted without legal excuse or justification, and was, therefore, to some degree at fault. Because
we hold there was no evidence of an overt act indicating imminent harm and therefore no error in
denying both proposed instructions on self-defense, we need not determine whether it was
harmless error to deny the specific instruction on justifiable use of force (applicable if the jury
found Taylor was without fault) in light of the jury’s finding Taylor acted without legal excuse or
justification. See Turman v. Commonwealth, 276 Va. 558, 567, 667 S.E.2d 767, 772 (2008).
Our holding also renders it unnecessary to determine whether there was evidence Taylor
retreated as far as he safely could, attempted to abandon the fight, and made known his desire for
peace to justify granting the specific self-defense instruction on excusable use of force
(applicable if the jury found Taylor was partly at fault).
       7
           Taylor’s proposed instruction on duress stated:

                      If you find from the evidence that the defendant acted under
                 duress, then you must find him not guilty. In order for the
                 defendant to use the defense of duress, you must find from the
                 evidence that he was threatened and that he had a reasonable fear
                 of imminent death or serious bodily injury. The defense of duress
                 is not available if the defendant had a reasonable opportunity to
                 escape and did not do so or had a reasonable opportunity to avoid
                 committing the crime without being harmed.

But “[w]here the defendant fails ‘to take advantage of a reasonable opportunity to escape, or of a
reasonable opportunity to avoid doing the acts without being harmed, he may not rely on duress
as a defense.’” Graham, 31 Va. App. at 674-75, 525 S.E.2d at 573 (quoting Pancoast v.
Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986)).

                                                -6-
directed toward causing [him] to commit the crime charged,’ was coupled with evidence that he

‘reasonably believed that participation in the crime was the only way to avoid the threatened

harm.’” Graham, 31 Va. App. at 675, 525 S.E.2d at 573 (quoting Roger D. Groot, Criminal

Offenses and Defenses 181 (4th ed. 1999)). “Vague threats of future harm, however alarming,

will not suffice to excuse criminal conduct [under the defense of duress].” Pancoast, 2 Va. App.

at 33, 340 S.E.2d at 836.

       As we previously concluded, there was no evidence Taylor was threatened with an

immediate injury since his assault on Wright was preceded only by Wright’s statement to Betina,

apparently overheard by Taylor, to get Wright his gun because “if that [sob] comes through the

gate, he’s dead.” Assuming Wright was even referring to Taylor, Wright’s statement to Betina

was still, at most, a vague threat of future harm. In addition, there is no evidence Taylor tried to

escape or avoid the assault. To the contrary, the evidence overwhelmingly shows Taylor

initiated the assault. As such, it was not error for the trial court to refuse Taylor’s proposed

instruction on duress.

                                        III. CONCLUSION

       Finding the trial court did not err in denying Taylor’s proposed jury instructions on

self-defense and duress, we affirm the judgment of the trial court.

                                                                                      Affirmed.




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