                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Haley and Petty
Argued at Salem, Virginia


WENDELL WALLACE TERRY
                                                              MEMORANDUM OPINION ∗ BY
v.     Record No. 2102-06-3                                   JUDGE JAMES W. HALEY, JR.
                                                                   AUGUST 12, 2008
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                               Clifford R. Weckstein, Judge

                 Michelle C. F. Derrico (Copenhaver, Ellett & Derrico, on briefs), for
                 appellant.

                 Leah A. Darron, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


                                        I. INTRODUCTION

        Appealing his conviction for assault upon a law enforcement officer in violation of Code

§ 18.2-57(C), Wendell Wallace Terry argues the trial court erroneously applied a defense of

property standard, rather than a defense of person standard, in considering a claim of self-defense

raised in closing argument by his counsel. We conclude that assignment of error need not be

addressed. Terry denied committing any offense against the officers and, thus, produced no

evidence in support of self-defense. Thus, his assignment of error necessarily fails, and we,

accordingly, affirm his conviction.

                                              II. FACTS

       We recite only those facts necessary to the disposition of this appeal.



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Roanoke Police Officer C.J. Witt responded to a call of a breaking and entering in

progress at Linda Macy’s house on October 10, 2005. Terry had periodically stayed at Macy’s

house. Witt entered the home with his gun drawn. Terry was found near a kitchen table, on

which was mayonnaise, bologna, and bread. Witt asked Terry to show his hands. Witt testified

Terry then “went rapidly” to the sink, “grabbed a knife, a silver knife and raised it over his head

and started coming at me.” Witt and two other officers eventually knocked the knife from

Terry’s hand, wrestled him to the ground, and handcuffed him. The knife turned out to be a

butter knife.

       Terry denied making any threatening movements toward the officers. He stated the

officers probably did see him grab a knife, but claimed he needed to spread the mayonnaise he

had retrieved from a refrigerator. He testified he never committed assault: “And I never went

like this. Why would I go like this? They would have shot me. I would have been a dead man

then. I wouldn’t be testifying.” He continued: “Why would I go after a butter knife? What?

Take a butter knife to a gun --- I’ve got three police officers with guns pointed at me. I’m going

to go and get a butter knife. I guess you would do that.” In short, Terry specifically denied he

made any threatening gestures whatsoever towards the officers and did nothing to defend

himself.

       During closing arguments, nonetheless, defense counsel asked the court to consider that

Terry acted in self-defense. Counsel argued that “a man in his own home who has somebody

suddenly approach him, even if they are police officers . . . that he is aware of no lawful need for

the officers to be in his home at that point in time. And we would submit that his actions were

not unreasonable.”




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                                          III. ANALYSIS

       In Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001), the Virginia

Supreme Court wrote that: “The principles governing a plea of self-defense are well-established.

Self-defense is an affirmative defense to a charge . . . and in making such a plea, a ‘defendant

implicitly admits [his actions were] intentional and assumes the burden of introducing evidence

in justification or excuse that raises a reasonable doubt . . . .’” (quoting McGhee v.

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

Cary, 271 Va. 87, 99-100, 623 S.E.2d 906, 912-13 (2006); 40 Am. Jur. 2d Homicide § 139

(2008) (stating that “self-defense involves an intentional, admitted act on the part of the

defendant”); 1 Michie’s Jurisprudence Assault and Battery § 7 (2007) (noting that when “making

a plea of self-defense, a defendant implicitly admits the wounding was intentional; the issue is

whether the accused’s admittedly intentional act was either justifiable or excusable”). This Court

has noted such an admission: “When the defendant asserted the defense of heat of passion and

self-defense, he conceded he shot the victim.” Peeples v. Commonwealth, 30 Va. App. 626, 630,

519 S.E.2d 382, 383 (1999) (en banc). See also Hughes v. Commonwealth, 43 Va. App. 391,

403-05, 598 S.E.2d 743, 749 (2004).

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

noted: “Self-defense . . . is a defense to an act of violence that repels violence directed at the

defendant.” (Emphasis added). Because self-defense is an affirmative defense, “the accused has

the burden of persuading the fact finder that he or she acted in defense of self or another to the

degree necessary to raise a reasonable doubt about his or her guilt.” Lynn v. Commonwealth, 27

Va. App. 336, 352, 499 S.E.2d 1, 9 (1998); see also Smith v. Commonwealth, 17 Va. App. 68,

71, 435 S.E.2d 414, 416 (1993). The defendant has “the burden of coming forward—the

practical burden of producing whatever self-defense evidence he can.” Ronald J. Bacigal,


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Virginia Practice: Criminal Offenses and Defenses, at 161 (2007-08 ed.). Self-defense must be

“supported by more than a scintilla of evidence.” Sands, 262 Va. at 729, 553 S.E.2d at 736.

        Terry expressly disclaimed that he committed any violence. We noted in Hughes that a

self-defense instruction was properly denied because: “Simply claiming they acted in

self-defense is insufficient. . . . No evidence suggests appellants . . . [acted] in self-defense.”

Hughes, 43 Va. App. at 404, 598 S.E.2d at 749. Here, it was not Terry who testified that he

acted in self-defense. Rather, it was his counsel who argued he did, without an evidentiary basis

to do so. Thus, whatever legal standard the circuit court may have applied to consider

self-defense is irrelevant since, as a matter of law, Terry was not entitled to seek acquittal based

upon self-defense. 1 Terry’s argument is therefore “self-defeating.” Lay v. Commonwealth, 50

Va. App. 330, 337, 649 S.E.2d 714, 717 (2007).

                                                                                              Affirmed.




        1
            In a factually similar case, the Court of Appeals of Georgia wrote:

                          As to the felony obstruction of a police officer count, the
                  record shows that appellants did not admit committing the
                  obstructionist acts that were alleged in the indictment and then
                  seek to justify those acts as a necessary defense against the police
                  officer’s use of force against them. Rather, appellants testified that
                  they had not committed those alleged obstructionist acts at all.
                  Thus, under the evidence, appellants either committed the alleged
                  acts of obstruction or they did not and no charge on self-defense as
                  to the felony obstruction of an officer count was authorized.

Love v. State, 391 S.E.2d 447, 448 (Ga. Ct. App. 1990).

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