                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia


DECARLOS D. COLEMAN
                                          MEMORANDUM OPINION * BY
v.   Record No. 1654-01-2        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                            DECEMBER 10, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   James F. D'Alton, Jr., Judge

          Steven P. Hanna for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     A jury convicted DeCarlos D. Coleman (appellant) of second

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

in the commission of murder in violation of Code § 18.2-53.1. 1

Appellant contends the trial court erred by (1) allowing the

Commonwealth to amend a jury instruction on transferred intent;

and (2) failing to instruct on self-defense.   For the reasons that

follow, we affirm.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       The jury acquitted appellant of the attempted murder of
Mario Roach and the use of a firearm in that attempted murder.
                            I.    BACKGROUND

     On August 31, 2000 appellant shot and killed Lucille Jones

(decedent).   That evening appellant and two friends, Aaron

Briggs and Jamie Hairston, were driving in the City of

Petersburg.   Briggs had to use the bathroom, so the group

stopped at the Lee Hall apartments.        While Briggs was urinating

by the curb, Fred Jones (Jones) pulled into the parking lot with

his cousin Mario Roach (Roach) and a friend, Kevin Batts.       Jones

lived in the apartments with his mother and brother.       Jones

parked his car, got out and walked towards his apartment.       At

that point, appellant got out of his car, "ran" over to Jones

and was "cussing him out."       Appellant "got right there in front

of" Jones and pulled a gun on him and asked, "What's up with

that stuff now?" 2   Jones, who saw Briggs and knew him, asked for

Briggs' help.   "I said, Aaron, man, you know I ain't with that."

Briggs vouched for Jones and got appellant to take the gun off

Jones.   Jones went to his apartment, and appellant and Briggs

walked toward their car.

     Briggs saw Kevin Batts in Jones' car.        Briggs "had a beef"

with Batts, so he went to the car to confront Batts.       Briggs

told Batts, "You're by yourself now, you know what I'm saying,

what you going to do now?    I should whoop your little ass."



     2
       This question was apparently a reference to an incident
five or six days earlier in which appellant's house was "shot
up."

                                   - 2 -
Briggs, with appellant watching, opened the car door and hit

Batts "like two times" and "snatched" him out of the car.     Batts

"knew he couldn't beat me . . . so it really won't no fight."

        According to appellant, when Briggs pulled Batts out of the

car, he "heard a metal object hit the ground and picked it up."

Roach got out of the back seat of Jones' car with a beer in his

hand.    "As soon as [Roach] got out of the car, appellant ran

around the back of the car and asked [him] what [he] was going

to do with the bottle."    Appellant, still armed, put a gun in

Roach's face.    Roach "put [his] hands in the air" and backed

away.    When Roach backed up, appellant turned away and then

"heard a shot."    Appellant "returned the shot" "in the direction

where I seen [sic] Fred Jones was at, where he had the gun at."

Appellant testified that he was firing at Jones rather than

Roach.

        The bullet missed Jones and Roach but struck the decedent

in the chest as she stood in her doorway.     Roach turned and ran

towards the apartment, where he saw the decedent "laid in the

doorway."    Jones "heard shots as soon as she opened the door."

He "ran and got the phone, then ran to her because I heard,

heard her fell [sic] to the floor."      When Jones reached her, the

decedent was "laying on the floor in the doorway."     The decedent

died of the gunshot wound, which penetrated her heart and right

lung.



                                 - 3 -
     The Commonwealth indicted appellant for the first degree

murder of Lucille Jones and the attempted murder of Roach.    At

trial, to conform the jury instructions to the evidence adduced,

including that of appellant who stated that Jones was his

intended target rather than Roach, the Commonwealth amended the

proposed language of Instruction #13 from "Mario Roach" to "some

person" as the basis of appellant's transferred intent.     The

trial court also refused to instruct the jury on self-defense.

The jury convicted appellant of second degree murder of Lucille

Jones and acquitted him of the attempted murder charge.

           II.   CONSTRUCTIVE AMENDMENT TO THE INDICTMENT

     Appellant first contends that when the trial court amended

the language of Instruction #13 to reflect that appellant

attempted to shoot someone other than Roach, it resulted in an

impermissible variance between the indictment and the evidence.

Appellant objected as follows:

           [My] objection to Instruction Number 13, use
           of the term "some person," I object to that
           in that it should have stayed the original,
           which was "Mario Roach" in that any
           attempted killing of Fred Jones was
           supported by the evidence on the basis that—
           was supported by the evidence to go to the
           jury on the basis that Fred Jones fired
           first and [appellant] returned fire.

Appellant did not object to a "variance" or a "constructive

amendment." 3


     3
       We note that the original argument on the instructions
occurred in chambers and no record of that discussion is before

                                 - 4 -
     The indictment reads, in pertinent part that, "DeCarlos

Dewayne Coleman on about the 31st day of August in the year Two

Thousand did willfully, deliberately and with premeditation,

kill and murder one Lucille Jones against the peace and dignity

of the Commonwealth of Virginia."   There is no language on the

face of the indictment regarding transferred intent.      The

indictment clearly charges appellant with the first degree

murder of Lucille Jones.   That is the same charge the trial

court submitted to the jury.    There was no amendment,

constructive or otherwise, to the indictment.

     Jury Instruction #13 originally read:    "If you believe

beyond a reasonable doubt that the defendant intended to kill

Mario Roach but that he killed Lucille Jones by mistake, then

the intent is transferred to the killing of Lucille Jones."

After appellant's testimony that his intent was to fire in the

direction of Jones rather than Roach, the trial court amended

Instruction #13 to encompasses the factual scenarios of both the

Commonwealth and the defense, that appellant intended to shoot a

person other than the victim:   "If you believe beyond a

reasonable doubt that the defendant intended to kill some person

but that he killed Lucille Jones by mistake, then the intent is


us. Just prior to instructing the jury, the trial court noted
that appellant had an objection to Instruction #13 and stated
"you can consider your objections preserved to those and you can
re-explain your objection to that instruction when you read the
other two [refused instructions] into the record after we
close."

                                - 5 -
transferred to the killing of Lucille Jones."   Nothing in this

instruction resulted in an amendment of the indictment, which

charged appellant with the murder of Lucille Jones.   Thus, the

trial court did not err in giving Instruction #13 defining the

requirements of transferred intent.

     Appellant's reliance on United States v. Floresca, 38 F.3d

706 (4th Cir. 1994), and Hawks v. Commonwealth, 228 Va. 244, 321

S.E.2d 650 (1984), is misplaced.   Both of these cases concerned

a difference between the specific allegations made in the

indictment and the proof of the crime at trial.   In Floresca,

the defendant was charged with witness tampering in violation of

18 U.S.C. § 1512(b)(1); however the trial court "instructed the

jury on the essential elements of 18 U.S.C. § 1512(b)(3)."

Floresca, 38 F.3d at 709.   The trial court's instruction,

therefore, amounted to a "constructive amendment of the

indictment" because "the jury was allowed to return a guilty

verdict upon a finding that Floresca approached [a potential

witness] with the intent to affect either his cooperation in the

investigation or his testimony at trial.   This resulted in a

broadening of the bases for Floresca's conviction."   Id. at 711. 4

In Hawks, the defendant complained that although he was charged

with abduction, the evidence adduced at trial "was at variance



     4
       Under the indictment, Floresca was expressly charged with
attempting to affect the witness cooperation with the
investigation.

                               - 6 -
with the charge of abduction for which he was indicted and that

in essence, he was tried for abduction with the intent to

defile."    Hawks, 228 Va. at 247, 321 S.E.2d at 651.    "A variance

is fatal, however, only when the proof is different from and

irrelevant to the crime defined in the indictment and is,

therefore, insufficient to prove the commission of the crime

charged."    Id. at 247, 321 S.E.2d at 651-52.   The instant case

implicates neither of these scenarios.

     We hold there was no fatal variance from the indictment

because there was no variance at all.     Instruction #13

accurately reflected the evidence adduced at trial and did not

"broaden" the charge appellant faced.

                          III.   SELF-DEFENSE

     Appellant next contends the trial court erred in refusing

to instruct the jury on self-defense.     We disagree.

"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); Yarborough v.

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

            "[A] person assaulted while in the discharge
            of a lawful act, and reasonably apprehending
            that his assailant will do him bodily harm,
            has the right to repel the assault by all
            the force he deems necessary, and is not
            compelled to retreat from his assailant, but


                                 - 7 -
          may, in turn, become the assailant,
          inflicting bodily wounds until his person is
          out of danger."

Dodson v. Commonwealth, 159 Va. 976, 979, 167 S.E. 260, 260

(1933) (quoting Jackson's Case, 96 Va. 107, 30 S.E. 452 (1898)).

     "The evidence upon which [appellant] relies to support his

proffered instruction comes from his own testimony.   He is bound

by that testimony on appeal."    Waters v. Commonwealth, 39

Va. App. 72, 79, 569 S.E.2d 763, 766 (2002) (citing Delawder v.

Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915 (1973)).      We

view the evidence with respect to the refused instruction in the

light most favorable to the appellant.    Boone v. Commonwealth,

14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992).

     So viewed, the evidence showed that appellant confronted

Jones, although he denied he had any weapons.   When Briggs told

Jones, "you all right [sic] with me, but I won't [sic] out there

when they came and they shot up the house," appellant and Briggs

"walked off" and Jones "ran in the house."   Appellant and Briggs

then saw Batts.   Appellant asked Briggs "don't you have some

beef with him?"   Whereupon, Briggs attacked Batts.

     According to appellant, when Briggs pulled Batts out of the

car, he "heard a metal object hit the ground and picked it up."

Then appellant saw Roach get out of the back of the car with a

bottle in his hand.   Appellant conceded that Roach did not get

into the fight because appellant "met him," with gun in hand,

and asked Roach what he was going to do with the bottle.

                                - 8 -
Appellant said when Roach backed up, he turned away and then

"heard a shot."   Appellant turned around, saw Jones "with a gun

in his hand" and "returned the shot."   Appellant, however,

neither saw Lucille Jones on the porch nor did he see anyone

shoot at him.   Appellant fled the scene with Briggs and

Hairston.

                 "Justifiable homicide in self-defense
            occurs [when] a person, without any fault on
            his part in provoking or bringing on the
            difficulty, kills another under reasonable
            apprehension of death or great bodily harm
            to himself." If an accused "is even
            slightly at fault" at creating the
            difficulty leading to the necessity to kill,
            "the killing is not justifiable homicide."

Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416

(1993) (quoting Bailey v. Commonwealth, 200 Va. 92, 96, 104

S.E.2d 28, 31 (1958); Perricllia v. Commonwealth, 229 Va. 85,

94, 326 S.E.2d 679, 685 (1985); Dodson v. Commonwealth, 159 Va.

976, 981, 167 S.E. 260, 261 (1933)).    "Any form of conduct by

the accused from which the fact finder may reasonably infer that

the accused contributed to the affray constitutes 'fault.'"       Id.

(quoting Bell v. Commonwealth, 2 Va. App. 48, 58, 341 S.E.2d

654, 659 (1986)).   By his own testimony, appellant was not

engaged in the discharge of a lawful act when he shot.     To the

contrary, appellant had instigated two separate confrontations:

one with Jones and a second with Roach.   Under the facts of this




                                - 9 -
case, a self-defense instruction was not warranted.

Accordingly, we affirm.

                                                      Affirmed.




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