                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Salem, Virginia

FREDDIE EUGENE CASEY, a/k/a
 FREDDIE EUGENE OSBORNE

v.       Record No. 1326-94-3          MEMORANDUM OPINION * BY
                                      JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA                   JULY 25, 1995

              FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                       Donald R. Mullins, Judge

            Daniel R. Bieger, (Copeland, Molinary &
            Bieger, P.C. on brief), for appellant.

            Kathleen B. Martin, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Freddie Eugene Casey (appellant) was convicted of first

degree murder.   On appeal, appellant contends that the trial

court erred in refusing to instruct the jury on second degree

murder because the testimony of two witnesses for the prosecution

supported such an instruction.   We disagree and affirm the

judgment of the trial court.

                                 I.

     On January 23, 1991, the decomposed body of Troy Lee

Stanford (Stanford) was discovered, covered with underbrush, a

tire, and a leather jacket, in the woods in Russell County.      At

the autopsy, the medical examiner counted 117 stab wounds to the

body and noted that several of the stab wounds had punctured

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
internal organs.   The medical examiner determined the cause of

death to be "very massive, rapid internal bleeding," and

estimated that Stanford had been dead "anywhere from a week to

three or four months."

     Keith Stanford, the victim's brother, testified that he last

saw Stanford alive on December 13, 1990.   On that day, the

brothers gave a ride to appellant, and appellant had borrowed

twenty dollars from Stanford.    Samuel Goodman saw Stanford alive

between 5:00 and 6:00 p.m. on December 14, 1990.
     Darrell Crabtree testified that he went to Brian Rowe's

trailer on Daw Road around 1:00 a.m. on December 15, 1990.    Bobby

Shortridge opened the trailer door, but told him to come back

later.   Crabtree, however, pushed his way into the trailer and

heard Barbie Clendenin crying.   He saw another woman washing

blood from the trailer walls and the kitchen table.   When

Crabtree asked what was going on, appellant said, "I killed the

son of a bitch."   Crabtree asked "who," to which appellant

replied, "that narcing son of a bitching Troy Stanford."

Crabtree did not see a body.    As Crabtree was leaving the

trailer, appellant and Brian Rowe told him that he "didn't see

nothing," and told him not to tell anyone.   Later, while

incarcerated in the Russell County jail, Crabtree saw appellant

again and appellant insisted that he not say anything about the

killing.

     Appellant told Ricky Fletcher and Yvonne Lester that he had




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cut someone on Daw Road because he had a habit to support.

Later, while in the Bristol jail, appellant told Fletcher that he

had stolen $350 to $400 from the man he killed.   William Lester

testified that, while in the Bristol jail, appellant told other

inmates that he stabbed Stanford in the chest several times.

Appellant said that Stanford had been lured to the trailer and

appellant had "killed the snitching bastard."

     Richard Hurt and Robert Hill also testified in the

Commonwealth's case in chief.    Hurt stated that he had talked to

appellant in the Russell County jail about the murder.    Appellant

told Hurt that Stanford had come to the trailer to collect some

money that appellant owed him, and "an argument broke out."

Appellant said he stabbed Stanford and, when he stabbed him, he

did not want to quit.    It was only the screaming of others in the

trailer that brought appellant back to his "attention."

Appellant told Hurt that watching someone take his last breath

was "real excitement."   Appellant also told Hurt that he required

everyone at the trailer to cut the body at least one time so that

no one would tell what happened.
     Robert Hill testified that, while in the Tazewell County

jail, appellant showed him a "forensic picture" of Stanford's

body, showing the stab wounds.   Appellant told Hill that he had

borrowed money from Stanford and, when Stanford came to collect

it, appellant did not have the money.   Appellant said they had an

argument, a knife was pulled, and there was a struggle.




                                 -3-
Appellant said he "just kept stabbing him," and then he and Brian

Rowe took the body to the woods and covered it with brush and

tires.

     Several witnesses testified for the defense that appellant

was not present at Brian Rowe's trailer on the evening of

December 14 and early morning of December 15, 1990.   Other

witnesses testified as to appellant's whereabouts at that time.

Appellant testified that he did not kill Stanford and had no

knowledge of how Stanford was killed.   Appellant claimed that the

witnesses for the prosecution were lying and were receiving some

benefit from the Commonwealth for their false testimony.
     Appellant tendered jury instructions which included a

finding of second degree murder.    The Commonwealth objected to

the instructions and the court refused them.

                                  II.

     Appellant's theory at trial was that he was not responsible

for Stanford's death and was not present at Rowe's trailer the

night of December 14 through the morning of December 15.

However, he contends on appeal, as he did at trial, that he was

entitled to a second degree murder instruction because

Commonwealth witnesses Hurt and Hill testified that he said he

and Stanford argued before he stabbed him, and Hill stated that

he said there was a struggle. 1
     1
      On brief, appellant also argues that the presence of 117
stab wounds "provides a credible basis for an inference that the
stabbing was committed insanely, or in a heat of passion, and not
as a result of a premeditated act." Appellant, however, did not


                                  -4-
     Although the Commonwealth prevailed in the trial court, we

must review the evidence relevant to appellant's refused

instructions in the light most favorable to him.    Martin v.

Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401 (1992)

(en banc) (citing Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d

340, 341 (1991)).   Moreover, it has long been established that a

jury need not accept "in toto" the theory of the Commonwealth or

the defendant, but may reject parts of the evidence it believes

to be untrue and accept the parts it believes to be true.       Belton

v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).

     An accused, however, "is entitled to have the jury

instructed only on those theories of the case that are supported

by evidence."   Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d

267, 280 (1986).    Evidence asserted in support of a lesser

included instruction "'must amount to more than a scintilla.'"

Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769

(1989), cert. denied, 493 U.S. 1063 (1990) (citations omitted).
See Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d

563, 564-65 (1993).

     If the jury based its verdict only on the evidence of Hill

and/or Hurt, the evidence does not require the giving of an

instruction on second degree murder.


make this argument to the trial court and we will not consider it
for the first time on appeal. See Jacques v. Commonwealth, 12
Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule
5A:18).



                                 -5-
     Neither witness testified that appellant claimed that he was

provoked into killing Stanford, or that he did not intend to kill

Stanford when he stabbed him.   "A design to kill may be formed

only a moment before the fatal act is committed provided the

accused had time to think and did intend to kill."     Giarratano v.

Commonwealth, 220 Va. 1064, 1074, 266 S.E.2d 94, 100 (1980).

     The fact that a killer and his victim argue prior to the

murder does not, of itself, mandate that a second degree murder

instruction be given.   See Buchanan, 238 Va. at 409-12, 384

S.E.2d at 769-71.   Nor does testimony that there was a struggle,

without more, provide more than a scintilla of evidence that the

accused lacked premeditation.   The evidence on which appellant

relies falls short of establishing "provocation, anger, passion,

or any other fact that might serve to convince a jury that [he]

acted without premeditation."   Id. at 412, 384 S.E.2d at 771.

Thus, the trial court did not err in refusing to instruct the

jury on second degree murder.   The judgment of the trial court is

affirmed.


                                                     Affirmed.




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