                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia


BARRY E. SOLLARS
                                       MEMORANDUM OPINION * BY
v.         Record No. 2246-95-1     JUDGE JERE M. H. WILLIS, JR.
                                          OCTOBER 1, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Verbena M. Askew, Judge
           Ruthie Litvin (Kevin M. Diamonstein;
           Diamonstein, Becker & Staley, on brief), for
           appellant.

           Leah A. Darron, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     Barry E. Sollars was convicted in a bench trial of voluntary

manslaughter, possession of cocaine with intent to distribute,

and possession of a firearm while in possession of cocaine.   On

appeal, he contends that the evidence is insufficient to support

his conviction of voluntary manslaughter.   We disagree and affirm

the judgment of the trial court.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.   Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).   "The judgment of a

trial court sitting without a jury is entitled to the same weight

as a jury verdict and will not be set aside unless it appears
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
from the evidence that the judgment is plainly wrong or without

evidence to support it."    Josephs v. Commonwealth, 10 Va. App.

87, 99, 390 S.E.2d 491, 497 (1990) (en banc) (citation omitted).

     On January 21, 1995, Randy Fodrie drove Richard Barkley from

his home in Mathews County to Newport News in an attempt to buy

cocaine from Sollars in exchange for a .22 rifle.   They did not

have enough cash to buy the cocaine, but Barkley estimated the

value of the rifle to be $70.   Barkley transported the rifle by

wrapping the barrel in a green shirt and placing it on the

floorboard of Fodrie's truck pointing towards the passenger door.

The rifle was not loaded.    En route, Barkley phoned Sollars to

ask whether he would accept the rifle in exchange for the

cocaine.   Sollars replied, "No."
     In Newport News, Fodrie and Barkley drove to the apartment

complex where Sollars lived.    They saw him outside and motioned

him over to the truck.   Sollars got in the truck and Barkley

asked him for a "sixteenth" of cocaine which sold for $70.

Sollars told Fodrie to drive across the street to the McDonald's

parking lot.   Sollars handed Barkley the cocaine and requested

payment.   Barkley handed the cocaine to Fodrie and then began

pushing on Sollars' shoulders saying, "Hey, I got something for

you, M___ F___."   As Barkley reached down to the floorboard to

pick up the rifle, Sollars opened the door to the truck and

jumped out.    Sollars then shot Barkley in the neck.

     Fodrie "hit the gas and took off" because he was afraid



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Sollars would shoot him.   By the time Fodrie arrived at a nearby

hospital, Barkley was dead from the gunshot wound.      Fodrie

disposed of the rifle behind the hospital, where it was later

recovered by the police still wrapped in the green shirt.

     After his arrest, Sollars admitted shooting Barkley but

claimed he did so in self-defense.       He acknowledged that the

gun recovered from his person was the gun used to shoot Barkley.

The trial court rejected Sollars' claim that he acted in
self-defense.   It found that Sollars had the opportunity to

retreat when he opened the truck door.      It also rejected Sollars'

testimony that his gun just went off.      It specifically found that

there was no evidence that Barkley had the "imminent intent to

kill [Sollars]."

     Sollars contends that the evidence fails to sustain his

conviction of voluntary manslaughter.      Voluntary manslaughter is

an intentional killing committed in the heat of passion upon

reasonable provocation.    See Belton v. Commonwealth, 200 Va. 5,

9, 104 S.E.2d 1, 4 (1958).   Heat of passion may be founded upon

fear, rage, or a combination of both.       McClung v. Commonwealth,

215 Va. 654, 657, 212 S.E.2d 290, 292 (1975).      Sollars argues

that the trial court erred in finding that the killing did not

occur in self-defense.    He contends that he was in fear for his

own life when he shot Barkley.

     Self-defense is an affirmative defense, which the accused

must prove by introducing evidence sufficient to raise a




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reasonable doubt about his guilt.      McGhee v. Commonwealth, 219

Va. 560, 562, 248 S.E.2d 808, 810 (1978).     Whether an accused

proves circumstances sufficient to create a reasonable doubt that

he acted in self-defense is a question of fact.      Yarborough v.

Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977).

     Credible evidence supports the trial court's finding that

the killing of Barkley was voluntary manslaughter and not

justifiable homicide.   Sollars was involved in a drug deal with

Barkley and when he had the opportunity to retreat safely, he

chose instead to shoot Barkley.   The evidence proved that after

Sollars handed the cocaine to Barkley, he exited the truck while

Barkley was leaning over to pick up the rifle from the

floorboard.   He then stood outside the truck and shot Barkley.

This is consistent with the autopsy report which disclosed that

the direction of fire was right to left and slightly downward.

However, it is contradictory to Sollars' testimony that Barkley

had the rifle pointed at his face in the truck and that his gun

just went off accidentally after he exited the truck.     The trial

court was not required to believe the defendant and was entitled

to infer that he lied to conceal his guilt.      See Black v.

Commonwealth, 222 Va. 838, 840, 284 S.E.2d 608, 609 (1981).

     The judgment of the trial court is affirmed.

                                                           Affirmed.




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