                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Overton
Argued at Alexandria, Virginia


GLEN DOUGLAS GREEN, JR.

v.        Record No. 1671-94-4         MEMORANDUM OPINION * BY
                                      JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA                  JANUARY 16, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                     Donald M. Haddock, Judge
          Susan Patterson (Richard C. Goemann; Kevin T.
          Gaynor; Office of Public Defender, on brief), for
          appellant.

          Marla Graff Decker, Assistant Attorney General
          (James S. Gilmore, III, Attorney General; John H.
          McLees, Jr., Assistant Attorney General, on
          brief), for appellee.


     Glen Green was convicted in a jury trial of second degree

murder in violation of Code § 18.2-32 and felonious use of a

firearm while committing murder in violation of Code § 18.2-53.1.

 On appeal he complains that the trial court erred both in

denying one of the defendant's jury instructions and in granting

two of the Commonwealth's jury instructions.   Finding no error,

we affirm the convictions.

     At trial, the defendant tendered a jury instruction based on

Virginia Model Jury Instruction 34.700 (Homicide — Lesser

Included Offenses) but containing slightly different language.

Specifically, the defendant added the wording:
          If you find that the defendant acted in the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     heat of passion upon reasonable provocation such
     that you find that the Commonwealth has failed to
     prove that the killing was malicious beyond a
     reasonable doubt, then you shall find the
     defendant not guilty of murder.
          If you find that the Commonwealth has proved
     beyond a reasonable doubt
          (1) That the defendant killed Kenyon Clark;
     and
          (2) That the killing was the result of an
     intentional act; and
          (3) That the killing was committed while in
     the sudden heat of passion upon reasonable
     provocation;
     then you shall find the defendant guilty of
     voluntary manslaughter . . . .

in place of the Model Instruction's wording:
     If you find that the Commonwealth has failed to
     prove beyond a reasonable doubt that the killing
     was malicious but that the Commonwealth has proved
     beyond a reasonable doubt that the defendant
     killed Kenyon Clark and further:
          (1) That the killing was the result of an
     intentional act; and
          (2) That the killing was committed while in
     the sudden heat of passion upon reasonable
     provocation;
     then you shall find the defendant guilty of
     voluntary manslaughter . . . .


The Commonwealth submitted the Model Instruction, which the judge

chose over defendant's version.

     Defendant claims that the Commonwealth's instruction shifts

the burden of proving malice from the Commonwealth to the

defendant.   We do not agree.   The jury was appropriately

instructed as to the Commonwealth's burden of proof.   The

elements of malice and heat of passion were defined for the jury.

The jury was told that the heat of passion excludes malice and

that the difference between murder and manslaughter was the




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presence or absence of malice.    The given instruction accurately

and clearly stated the law and, in combination with the other

instructions, covered all the issues raised.    Hudspith v.

Commonwealth, 17 Va. App. 136, 137, 435 S.E.2d 588, 589 (1993).

The trial court did not err in choosing the given instruction.

     The defendant also assigns error to the granting of the

Commonwealth's instruction on the inference of malice.      He

charges that the given instruction shifts the burden of proving

malice to the defendant and that the instruction unfairly

emphasizes the element of malice and is duplicative of other

instructions.   These arguments fail.
     As stated, the elements of the charged offenses as well as

the burdens of proof were explained to the jury clearly from a

reading of the instructions as a whole.   The burden of persuasion

regarding malice was not shifted to the defendant.    The

permissive inference of malice establishes a burden of production

and not one of persuasion.   Warlitner v. Commonwealth, 217 Va.

348, 350, 228 S.E.2d 698, 700 (1976), cert. denied, 430 U.S. 957
(1977).   As this instruction was the only one to allow the jury

to infer malice, it was not duplicative nor unduly emphatic.

     For the reasons above, the trial court did not err in

granting the Commonwealth's instructions and denying the

defendant's.

                                          Affirmed.




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