                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Petty and Alston
Argued by teleconference


SHELDON ANDRE SWILLING
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0548-10-1                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                     MAY 17, 2011
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                 Leslie L. Lilley, Judge

                 Kimberly R. Smith, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Following a bench trial, Sheldon Andre Swilling (appellant) was convicted of brandishing a

firearm, in violation of Code § 18.2-282. On appeal, appellant challenges the sufficiency of the

evidence to support his conviction. He concedes the evidence proved that he brandished a firearm

but argues that his behavior was not criminal, claiming he brandished the firearm in self-defense.

For the following reasons, we affirm the judgment of the trial court.

                                        I. BACKGROUND1

       In this misdemeanor matter, there was no transcript of the proceeding below.

Accordingly, the evidence presented in the circuit court is provided in this appeal by an agreed

statement of facts duly signed by the trial judge.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         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 this appeal.
       On April 21, 2009, DeToni Oakley (DeToni) called her father Oswald Oakley (Oakley). 2

She made the telephone call from the townhouse that she shared with her sister, Shannon Oakley

(Shannon). On the telephone, Oakley could hear the sound of yelling, so he assumed that

DeToni needed assistance. Oakley recognized the voice of appellant, whom Oakley knew

through Shannon, in the background. Concerned, Oakley and his ex-brother-in-law, Clint

Roberts (Roberts), hurried to DeToni’s house.

       Upon arriving at DeToni’s townhouse, Oakley and Roberts split up. Oakley went

through the front door of DeToni’s townhouse, and Roberts went around the side of the

townhouse. Appellant, who had been alerted to Oakley’s and Roberts’ arrival by the sound of

the truck driving down the road, attempted to exit the townhouse through the back door. When

he encountered Roberts, he attempted to go back through the house. After meeting Oakley in the

house, appellant again exited the house through the back door.

       Oakley testified that he walked through the house to the backyard, where he encountered

appellant. According to Oakley, appellant brandished a handgun, racked the slide of the weapon,

and “advised both men to not come any further or he would shoot.” Oakley stated that at that

time, he was thirty to thirty-five feet away from appellant and Roberts was three to four feet

away from appellant. Neither Oakley nor Roberts was armed with a weapon. Shannon testified

that Oakley and Roberts were shouting at appellant; Oakley denied this allegation.

       Oakley testified that he did not approve of Shannon dating appellant. Oakley admitted

that two years prior to the behavior at issue in the instant appeal he found Shannon, who was

then sixteen years old, having sex with appellant. After the incident, Oakley held appellant at




       2
         The written statement of facts does not reflect the date the incident occurred; however,
the criminal complaint suggests the incident occurred on April 21, 2009.

                                                -2-
gunpoint for more than an hour, threatening to kill him and his family. He also admitted that on

that prior occasion, he had called another individual to his home to help him confront appellant.

       Shannon also testified regarding the incident that occurred after Oakley discovered her

and appellant having sex. She stated that Oakley waved a gun in the air while slapping her and

screaming at both her and appellant. She stated that Oakley held appellant at gunpoint for one

and one-half hours and threatened to kill him and his family. According to Shannon, Oakley’s

friend threatened to cut off appellant’s fingers. Oakley subsequently refused to allow Shannon to

live with him any longer and ordered her not to see appellant.

       Shannon testified that on the date of the brandishing, she and appellant went to DeToni’s

townhouse to confront her about money Oakley had left with DeToni for Shannon.

Surreptitiously, DeToni called Oakley during the ensuing argument. When Oakley arrived at

DeToni’s townhouse, appellant attempted to escape, but Shannon stated he was “cornered [in the

backyard] with his back to a fence with her and her father and . . . Roberts in front of him

shouting at him.” Shannon stated that appellant put his hand on his waist to show Oakley and

Roberts that he had a weapon and that appellant advised the men not to “proceed any further or

he would shoot.” Shannon stated that Roberts was three feet from appellant and Oakley was a

“few more feet away” from appellant when appellant told them not to come any closer. In

closing, Shannon stated that she loved appellant, but that she would not lie for him.

       During questioning by the police, appellant admitted that on the date of the incident, he

possessed a gun. He stated that he had thrown it away after the incident and he “was sorry for

everything.”

       After both parties rested, appellant moved to strike the evidence, arguing that given the

past history between appellant and Oakley, appellant feared for his life when he brandished the

weapon. Appellant argued that because self-defense is a legal justification for brandishing a

                                                -3-
firearm, appellant had not behaved criminally. The trial court rejected appellant’s argument and

found him guilty of brandishing a firearm.

       This appeal followed.

                                          II. ANALYSIS

       Code § 18.2-282(A) states in pertinent part:

               It shall be unlawful for any person to point, hold or brandish any
               firearm . . . in such manner as to reasonably induce fear in the
               mind of another or hold a firearm . . . in a public place in such a
               manner as to reasonably induce fear in the mind of another of
               being shot or injured. However, this section shall not apply to any
               person engaged in excusable or justifiable self-defense.

Appellant argues that because he was acting in self-defense, his brandishing of the firearm was

not prohibited criminal conduct.

       “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 v. Commonwealth, 219 Va. 560,

562, 248 S.E.2d 808, 810 (1978)). Whether appellant “prove[d] circumstances sufficient to

create a reasonable doubt that he acted in self-defense is a question of fact.” Id. (citing

Yarborough v. Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977)). “The trier of

fact determines the weight of evidence in support of a claim of self-defense.” Gardner v.

Commonwealth, 3 Va. App. 418, 426, 350 S.E.2d 229, 233-34 (1986) (citing Yarborough, 217

Va. at 979, 234 S.E.2d at 291-92; Dodson v. Commonwealth, 159 Va. 976, 984-85, 167 S.E.

260, 262 (1933)). The “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 (citing Yarborough, 217 Va. at 979, 234 S.E.2d at 292).




                                                -4-
       Virginia courts have long recognized that

               a person who reasonably apprehends bodily harm by another is
               privileged to exercise reasonable force to repel the assault.
               Jackson v. Commonwealth, 96 Va. 107, 113, 30 S.E. 452, 454
               (1898); see also Montgomery v. Commonwealth, 99 Va. 833, 835,
               37 S.E. 841, 842 (1901) (recognizing the right of a landowner “to
               order [a trespasser] away, and if he refuse[s] to go, to use proper
               force to expel him” so long as no breach of the peace is committed
               in the outset). The privilege to use such force is limited by the
               equally well recognized rule that a person “shall not, except in
               extreme cases, endanger human life or do great bodily harm.”
               Montgomery v. Commonwealth, 98 Va. 840, 843, 36 S.E. 371, 372
               (1900). Moreover, the amount of force used must be reasonable in
               relation to the harm threatened. See id. at 844, 36 S.E. at 373 (“it
               is not reasonable to use deadly force to prevent threatened harm to
               property, such as a mere trespass or theft”); W. LaFave & A. Scott,
               Criminal Law § 5.9(a) (2d ed. 1986).

Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25-26 (1989).

       In addition, “whether the danger is reasonably apparent is always to be determined from

the viewpoint of the defendant at the time he acted.” McGhee, 219 Va. at 562, 248 S.E.2d at

810. “‘[P]rior acts of violence by the victim [are] relevant as bearing on the reasonable

apprehension which the defendant may have experienced . . . .’” Luck v. Commonwealth, 30

Va. App. 36, 43, 515 S.E.2d 325, 328 (1999) (quoting Edwards v. Commonwealth, 10 Va. App.

140, 142, 390 S.E.2d 204, 206 (1990)).

       Neither Oakley nor Roberts displayed or threatened to use a firearm or other weapon on

the date of the instant offense, and the statement of facts indicates the men were not armed.

Furthermore, while there was evidence that they shouted at appellant, there is no evidence that

these shouts evidenced an intention by either Oakley or Roberts to inflict bodily harm on

appellant. Moreover, although appellant fled when Oakley arrived, the fact-finder was free to

conclude that appellant failed to prove that he reasonably apprehended a danger of harm to

himself. While Oakley had held appellant at gunpoint two years earlier in another confrontation,

which would have supported a finding that appellant could reasonably have feared for his safety
                                               -5-
when Oakley and Roberts confronted him on April 21, 2009, the trier of fact was free to

conclude appellant failed to prove he in fact harbored such fear on that date. 3

       “The credibility of the witnesses and the weight accorded the evidence are matters solely

for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) (citing

Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Carter v.

Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)). Based on the record before this

Court, we cannot say that the trial court’s factual determination that appellant did not act in

self-defense when he brandished the handgun was plainly wrong.

       Accordingly, finding no error, we affirm the judgment of the trial court.

                                                                                            Affirmed.




       3
           This is not a case where the trial judge failed to instruct the jury on self-defense. Here,
the trial judge was responsible for making both legal and factual determinations, and we simply
defer to the trial court’s factual determination that defendant did not carry his burden of proving
self-defense.
                                                  -6-
