                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Clements
Argued at Richmond, Virginia


ARDIE CORNEILUS FLOWERS, JR.
                                                               MEMORANDUM OPINION * BY
v.        Record No. 1822-10-2                               JUDGE JEAN HARRISON CLEMENTS
                                                                     OCTOBER 11, 2011
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                   Bradley B. Cavedo, Judge

                    William T. Linka (Richmond Criminal Law, on brief), for appellant.

                    Jennifer C. Williamson, Assistant Attorney General (Kenneth T.
                    Cuccinelli, II, Attorney General, on brief), for appellee.


          Ardie Corneilus Flowers, Jr. (hereinafter “appellant”) was convicted of voluntary

manslaughter and unlawful wounding. On appeal, he maintains the evidence was insufficient to

support his convictions and that the trial court applied incorrect legal standards in rejecting his

self-defense plea. Finding no error in the trial court’s decision, we affirm.

          As the parties are fully conversant with the record in this case and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.

                                                 BACKGROUND

          “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,


          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). On August 9, 2009, Derrick Bynum was in downtown

Richmond when his brother Leeshaun (“Shaun”) Bynum appeared without warning in his car.

Shaun told Derrick he had been looking for him because appellant had “slapped” their mother.

       Derrick joined Shaun in his car, and the two brothers immediately went to appellant’s

house. When they arrived, they encountered appellant’s thirteen-year-old son, Trey, exiting the

front door. Derrick and Shaun told Trey they needed to speak with appellant, and Trey went

back inside while the brothers remained on the front porch. Upon learning the Bynums were

waiting, appellant, who was showering, partially dressed and went to the door.

       The Bynums greeted appellant in an “aggressive” tone, instructing him to step outside to

discuss the “incident that happened earlier between [him] and [their] mama.” Appellant asked

the brothers to wait while he went upstairs and fully dressed. Following his father upstairs, Trey

told him he was “scared” and that appellant should get his gun. Appellant put a loaded gun in his

pocket before returning downstairs and inviting the Bynums inside.

       The Bynums followed appellant into the kitchen and began to talk to him about the

incident with their mother. Appellant sat down at the kitchen table and invited the brothers to do

the same, but they refused. Instead, they stood together in the narrow space between the kitchen

table and the sink. Appellant denied hitting their mother and suggested that they call her “to

straighten this thing out.” Toward that end, Trey retrieved appellant’s cell phone from upstairs

and gave it to Shaun.

       Shaun went into the living room and spoke on the phone for several minutes. During that

time, Derrick remained in front of the kitchen sink with his arms folded in front of him. 1


       1
        Appellant disputed Derrick’s testimony that his arms remained in front of him and
contended that Derrick frequently put one hand behind his back, causing appellant to fear he was

                                                -2-
Appellant continued to deny striking Derrick’s mother and told Derrick his mother had stolen

money from appellant’s closet. Derrick went into the living room and related to Shaun what

appellant had stated. Shaun, who continued to talk on the phone, appeared to have no reaction to

this announcement.

         Shortly thereafter, Derrick and Shaun returned to the kitchen where appellant remained

seated at the table. After concluding his phone call, Shaun stated, “All right. All right.” Derrick

stood by the sink as Shaun approached appellant with the cell phone. As Shaun handed the cell

phone back to appellant with his left hand, he raised his right hand and struck appellant in the

face. In response, appellant fired his gun twice, wounding both Derrick and Shaun. The

wounded men fled toward the front door, but Shaun, who had been struck in the chest, collapsed

at the door and died. Derrick, who had been struck in the forearm, ran home.

         Appellant testified he fired his gun to get the Bynums “off him” and because he feared

they might be armed. He noted that Derrick appeared to be “rushing” toward him at the time

Shaun struck him. He acknowledged, however, he saw no bulges in the brothers’ clothing or any

other indication the men were carrying weapons.

         After hearing the evidence, the trial court found Trey to be the most credible witness and

noted he testified Derrick never moved toward appellant. The trial court observed further that

the bullet’s entry into the back side of Derrick’s forearm constituted “convincing evidence” that

Derrick’s arms were folded in front of him when he was shot. As the trial court found no reason,

based upon the “way the Bynums presented themselves and the way they were dressed,” 2 for




carrying a weapon. Appellant also noted that the Bynums’ mother had told appellant about the
weapons they carried.
         2
             Derrick was dressed in a “wife beater and shorts,” and Shaun was wearing a t-shirt and
pants.

                                                  -3-
appellant to believe they were armed, it determined appellant’s response to being struck was

“unreasonable” and “excessive.”

           Having rejected appellant’s argument he shot the Bynums in self-defense, the trial court

convicted him of voluntary manslaughter and unlawful wounding. This appeal followed.

                                             ANALYSIS

       Appellant raises three arguments on appeal. First, he contends the evidence was insufficient

to find him guilty of either offense because he acted in self-defense. Second, he argues the trial

court erroneously applied a “three-prong” test in determining whether he acted in self-defense.

Finally, he asserts the trial court erred by applying an “objective standard of reasonableness in

determining whether [he] acted out of fear of injury.”

       We begin by addressing the second and third issues, both of which pertain to whether the

trial court applied the correct legal standards in rejecting appellant’s self-defense claim. 3

       With respect to the second assignment of error, appellant points out that the trial court

made comments at the sentencing hearing indicating it employed an incorrect “three prong test”

during the guilt phase in deciding whether appellant acted in self-defense. Appellant contends

the trial court’s comments reflect it mistakenly applied an excusable homicide analysis, an

analysis that required appellant to retreat or take affirmative steps to avoid further conflict before

defending himself. Specifically, appellant refers to the trial court’s comments that

                 a couple of things have to happen before you shoot someone. . . .
                 [O]ne, you have to ask them to leave. Two, you’ve got to call the
                 police if you have the opportunity if they don’t leave. And then,
                 three, you’ve got to brandish the gun to try to make them leave and

       3
          Appellant also argues that the “trial court improperly sustained the Commonwealth’s
objection when appellant’s counsel attempted to question appellant’s son about why he was
afraid of the Bynums[.]” As that evidentiary ruling is not included in the assignments of error,
we decline to address that issue. See Rule 5A:20(c). Likewise, we do not consider appellant’s
assertion that the trial court erred by failing “to consider that the appellant had the same right to
defend his son as he did himself” because the assignments of error do not raise this specific
issue.
                                                   -4-
                face the consequences of that, if any. And if things don’t go as
                they should, then perhaps you have to use the gun. None of those
                things happened in this case.

        The Commonwealth responds that the foregoing excerpt does not fairly represent the trial

court’s comments or the context in which they were made. It contends the trial court was not

articulating the legal standard for self-defense, but instead, was responding to appellant’s contention

that the circumstances of the crime did not warrant incarceration. We agree with the

Commonwealth.

        After making the comments cited above, the trial court went on to explain that

                I don’t think this is a case for a suspended sentence, Mr. Linka. I
                also don’t think it’s a case for the maximum, which is what the
                family wants, and that’s certainly understandable. . . . I think
                Mr. Flowers is guilty of what he was charged with. He exercised
                very, very bad judgment. Mr. Bynum is dead and his brother is
                wounded. And I think some time has to be served for that, if for
                no other reason than so that anyone else who may hear about this
                will not make the same mistakes in judgment that Mr. Flowers has
                made.

        When appellant suggested these comments indicated the trial court had incorrectly

applied this “three-part analysis” in convicting him, the trial court explicitly stated this analysis

was not the basis for its verdict.

                THE COURT: All right. He is revisiting the guilt phase.

                [THE COMMONWEALTH]: Yeah. In response, the Court was
                very clear on the record at the time of trial as to the analysis and
                employed the appropriate analysis in why you convicted him. I
                think what the Court stated today is what the Court thought and
                considered about in reference to what is an appropriate sentence.

                THE COURT: Exactly.

However, when the trial court assessed appellant’s argument he acted in self-defense at the guilt

phase, it summarized the law as follows:

                [T]he law of self-defense is the law of necessity, and I think the
                word necessity is key. If it reasonably appears to a defendant that
                the danger exists, he has the right to defend against it to the same
                                                 -5-
               extent and under the same rules as would obtain in a case – in case
               the danger is real.

                   The defendant may always act upon [the] reasonable
               appearance of danger, and whether the danger is reasonably
               apparent is always to be determined from the viewpoint of the
               defendant at the time he acted. But I don’t think the defendant gets
               to judge for himself what is reasonable. I think reasonable implies
               reasonable under the circumstances, and not just from the point of
               view of the defendant.

       “‘A trial court is presumed to apply the law correctly.’” Breeden v. Commonwealth, 43

Va. App. 169, 188, 596 S.E.2d 563, 572 (2004) (quoting Shenk v. Shenk, 39 Va. App. 161, 169,

571 S.E.2d 896, 900 (2002)). Nothing in the trial court’s ruling indicates it assumed appellant

was obliged to retreat or take affirmative steps to avoid a conflict with the Bynums prior to

defending himself. After finding that Shaun struck appellant, the trial court never stated

appellant acted improperly by defending himself; rather, it found that “the response of Mr.

Flowers to what happened was unreasonable and excessive.”

       Appellant argues further, however, that the trial court erroneously applied an objective

test to his actions in determining whether appellant’s response was appropriate. Appellant

submits the appropriate inquiry in assessing whether his response was proportionate to the threat

was “not what a reasonable man would have believed, but what [he] believed.” Citing his belief

that both brothers were assaulting him and his knowledge they “sometimes” carried weapons,

appellant contends the trial court erred in deciding his use of a firearm was excessive.

       It is well settled that “‘a person who reasonably apprehends bodily harm by another is

privileged to exercise reasonable force to repel the assault.’” Diffendal v. Commonwealth, 8

Va. App. 417, 421, 382 S.E.2d 24, 25 (1989) (quoting Jackson v. Commonwealth, 96 Va. 107,

113, 30 S.E. 452, 454 (1898)). However, this privilege is “limited by the equally well

recognized rule that a person ‘shall not, except in extreme cases, endanger human life or do great



                                               -6-
bodily harm.’” Id. at 421, 382 S.E.2d at 26 (quoting Montgomery v. Commonwealth, 98 Va.

840, 843, 36 S.E. 371, 372 (1900)).

               [A] defendant must reasonably fear death or serious bodily harm to
               himself at the hands of his victim. It is not essential to the right of
               self-defense that the danger should in fact exist. If it reasonably
               appears to a defendant that the danger exists, he has the right to
               defend against it to the same extent, and under the same rules, as
               would obtain in case the danger is real. A defendant may always
               act upon reasonable appearance of danger, and whether the danger
               is reasonably apparent is always to be determined from the
               viewpoint of the defendant at the time he acted.

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

               These ancient and well-established principles have been recited to
               emphasize the subjective nature of the defense, and why it is an
               affirmative one. As Chief Justice Hudgins pointed out in Harper v.
               Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955):
               “‘What reasonably appeared to the accused at the time of the
               shooting, as creating the necessity for his act, is the test and not
               what reasonably appeared to him, provided it would so appear to
               some other reasonable person under similar circumstances.’”

               The subjective belief of the defendant, without more, however, is
               insufficient to establish self-defense.

               In dealing with apparent danger the jury should be told that before
               an accused is justified in making an attack with a dangerous
               weapon upon his adversary he must honestly believe and must
               have reasonable cause to believe that he was in imminent danger of
               losing his life or suffering serious bodily injury. . . . “The bare
               fear that a man intends to commit murder, however well grounded,
               unaccompanied by any overt act indicative of such an intention,
               will not warrant killing the party by way of prevention.”

Peeples v. Commonwealth, 30 Va. App. 626, 637, 519 S.E.2d 382, 387 (1999) (some citations

omitted) (emphasis added).

       Here, the trial court, acting as fact finder, was entitled to assess the credibility of the

witnesses and to conclude that, contrary to appellant’s testimony, Derrick was not joining in the

assault at the time appellant fired his weapon. See Sandoval v. Commonwealth, 20 Va. App.

133, 138, 455 S.E.2d 730, 732 (1995) (“The credibility of the witnesses and the weight accorded

                                                 -7-
the evidence are matters solely for the fact finder who has the opportunity to see and hear that

evidence as it is presented.”). Likewise, based on appellant’s testimony he saw no bulges in the

Bynums’ clothing or any other evidence of a weapon, the trial court could rationally conclude,

viewing the circumstances from appellant’s viewpoint, that appellant had only a “bare fear” the

Bynums might be armed, and, therefore, could not reasonably conclude from a single blow he

was threatened with death or serious bodily harm. Cf. Gilbert v. Commonwealth, 28 Va. App.

466, 471, 506 S.E.2d 543, 545 (1998) (assailants openly threatened to kill defendant after beating

him so severely he “could barely walk”).

       Finally, we turn to appellant’s assertion the evidence was insufficient to support his

convictions because he fired his gun in self-defense. “Self-defense is an affirmative defense

which the accused must prove by introducing sufficient evidence to raise a reasonable doubt

about his guilt.” Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993)

(citing McGhee, 219 Va. at 562, 248 S.E.2d at 810). “[T]he right to use deadly force in

self-defense ‘begins where the necessity begins and ends where it ends.’” Couture v.

Commonwealth, 51 Va. App. 239, 251, 656 S.E.2d 425, 431 (2008) (quoting Thomason v.

Commonwealth, 178 Va. 489, 498, 17 S.E.2d 374, 378 (1941)). “‘The law does not clothe [the

defendant] with authority to judge arbitrarily of the necessity. He cannot kill, except in case of

actual necessity, and whether or not such necessity exists is a question for the [fact finder].’” Id.

at 250, 656 S.E.2d at 431 (quoting Hendricks v. Commonwealth, 163 Va. 1102, 1110, 178 S.E.

8, 11 (1935)). “A trial judge’s factual findings will not be disturbed on appeal unless plainly

wrong or without evidence to support them.” Smith, 17 Va. App. at 71, 435 S.E.2d at 416

(citation omitted).

       As competent and credible evidence supported the trial court’s decision that appellant

used excessive force by shooting two apparently unarmed men in response to one of them

                                                -8-
striking him in the face, the trial court properly rejected appellant’s plea of self-defense.

Accordingly, the evidence was sufficient to support appellant’s convictions for voluntary

manslaughter and unlawful wounding.

                                                                                            Affirmed.




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