                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia


OMAR VINCENT CRADDOCK
                                         MEMORANDUM OPINION * BY
v.        Record No. 1846-95-2            JUDGE LARRY G. ELDER
                                             AUGUST 6, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Cullen D. Seltzer, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Omar Vincent Craddock (appellant) appeals his conviction for

first degree murder in violation of Code § 18.2-32.   Appellant

contends that the trial court erred in refusing to instruct the

jury that it should acquit him of first degree murder if it found

that he was sufficiently intoxicated to preclude premeditation

and deliberation.   We disagree and affirm appellant's conviction.

                                  I.

                                 FACTS

     Appellant and Cassandra Finney were involved in a four-year

relationship which ended shortly before May 19, 1995.     According

to Finney's testimony, appellant told her on May 19, 1995, that
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
he was going to "get" her, and "if he had to go back to jail it

was going to be for something serious."      The same day, Finney

took her three children and went to stay at the apartment of her

friend, Susan Haskell, who was appellant's cousin.

        At approximately 6:00 a.m. on May 20, 1995, appellant kicked

in the door to Haskell's apartment and said to Finney, "you don't

want me no more, you took a warrant out on me."     After asking

Finney two questions, appellant pulled out a gun and began

shooting.    Haskell was struck and killed, and Finney was injured

by multiple gunshot wounds.
        Police arrested appellant later that morning, after Finney

identified appellant as the man who shot her.     Beginning at 10:00

a.m., police questioned appellant.      Detective R. M. House

testified that appellant stated, in his grandmother's presence,

"yes, grandma, I did this."    Appellant also said that he was

"high all night, his mind was running a thousand miles an hour, a

million miles an hour, and that [Haskell and Finney] were against

him."    Appellant told his grandmother, "they hurt me,

grandmother, they hurt me, grandma, I was high and when I get

high, grandmother, your mind be running a million miles per

hour."    Detective House also testified that appellant dozed off

during questioning, his eyes were "kind of glazed or watered,"

but that the detective did not know "if he was high or sleepy or

what.    He didn't appear to be abnormal."

        Appellant told police that after the shootings, he dropped




                                  -2-
his gun "near a big field" as he fled the apartment complex.

However, because appellant could not recall precisely where he

had dropped the gun, police failed to locate the weapon.

     Appellant was indicted on one count of first degree murder

and other related charges.   At trial on August 11, 1995,

appellant testified that he had been a cocaine addict and started

using heroin after midnight on May 20, 1995.   Appellant testified

that his personality changed when he used drugs, and he stated

that heroin "slows you down.   It's like a downer.   Your reactions

are slow."   Appellant also testified that he never went to

Haskell's apartment on May 20, 1995 and denied telling his

grandmother that he shot the women.
     Appellant requested that the trial court give the following

jury instruction:    "If you find that the defendant was so greatly

intoxicated by the voluntary use of alcohol and/or drugs that he

was incapable of deliberating or premeditating, then you cannot

find him guilty of murder in the first degree."   The trial court

refused to give this instruction, stating that appellant

presented no evidence to establish what effect, if any, the

heroin had on him.   The jury found appellant guilty of all

charges on which he had been indicted.   Appellant now appeals his

conviction to this Court.

                                 II.

                          JURY INSTRUCTION

     We hold that the trial court properly denied appellant's




                                 -3-
proffered instruction.

     "A defendant is entitled to have the jury instructed only on

those theories of the case that are supported by the evidence."

Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280

(1986).   More than a scintilla of evidence must be present to

support an instruction.     Frye, 231 Va. at 388, 345 S.E.2d at 280.

"[T]he weight of the credible evidence that will amount to more

than a scintilla of evidence is a matter to be resolved on a

case-by-case basis."     Brandau v. Commonwealth, 16 Va. App. 408,

412, 430 S.E.2d 563, 565 (1993).    This determination "is largely

a factor of determining the weight of that evidence [supporting

the defendant's proposition] in comparison to the weight of the

other credible evidence that negates the proposition in

question."   Id. at 411-12, 430 S.E.2d at 565.

     "When a [defendant] has become so greatly intoxicated as not

to be able to deliberate and premeditate, he cannot commit murder

of the first degree, or that class of murder under our statute

denominated a wilful, deliberate and premeditated killing."
Johnson v. Commonwealth, 135 Va. 524, 531, 115 S.E. 673, 675

(1923).   "In Virginia, mere intoxication from drugs or alcohol is

not sufficient to negate premeditation."     Duncan v. Commonwealth,

2 Va. App. 717, 731, 347 S.E.2d 539, 547 (1986); Giarratano v.

Commonwealth, 220 Va. 1064, 1073, 266 S.E.2d 94, 99 (1980).

"[S]o long as [a defendant] retains the faculty of willing,

deliberating and premeditating, though drunk, he is capable of



                                  -4-
committing murder in the first degree; and if a drunk man is

guilty of wilful, deliberate and premeditated killing, he is

guilty of murder in the first degree."     Duncan, 2 Va. App. at

731, 347 S.E.2d at 547.   "The question is whether the facts

indicate that the defendant was intoxicated to such an extent

that he did not know what he was doing or did not know right from

wrong," id., not whether appellant was merely intoxicated.

     To determine whether more than a mere scintilla of evidence

established appellant's intoxication to a degree to which he

could not premeditate or deliberate, this Court must view the

facts in the light most favorable to appellant.     Brandau, 16 Va.

App. at 411, 430 S.E.2d at 564-65.     We hold that although

appellant claimed to have consumed a substantial quantity of

heroin after midnight on May 20, 1995, "the evidence was

insufficient to show that he was so intoxicated as to render him

incapable of committing a wilful, deliberate and premeditated act

designed to kill the victims."    Jenkins v. Commonwealth, 244 Va.

445, 458, 423 S.E.2d 360, 368 (1992), cert. denied, 507 U.S. 1036
(1993)(emphasis added); Hatcher v. Commonwealth, 218 Va. 811, 241

S.E.2d 756 (1978); Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d

202, cert. denied, 442 U.S. 924 (1979).     The issue is not merely

whether a scintilla of evidence showed that appellant had

consumed heroin or whether appellant was intoxicated.

     Appellant points to various pieces of evidence in support of

his contention.   First, appellant asserts that his testimony and




                                 -5-
the Commonwealth's evidence showed that he was so highly

intoxicated due to heroin consumption that he could not

premeditate or deliberate.   We disagree.   Appellant testified at

trial that he consumed a large quantity of heroin at

approximately 12:15 a.m. on May 20, 1995.   Although appellant

testified that heroin affected him "like a downer" or a "sleeping

pill," he specifically stated in response to direct questioning

that heroin did not make him "out of his mind."    At no other

point did appellant present evidence that he suffered from

intoxication to such a degree that he was unable to premeditate

or deliberate on May 20, 1995.   While police officers testified

that appellant told them that he had consumed heroin and that the

drug caused his mind to "run a million miles per hour," appellant

denied these statements on the stand.   Indeed, appellant denied

on the stand that he had been near Haskell's apartment on May 20,

1995 and denied ever committing murder that morning.
     Next, appellant asserts that evidence proved that he was

intoxicated when interviewed by the authorities.   Detective House

testified that while he questioned appellant on the morning of

May 20, 1995, appellant started "to doze off," and appellant's

eyes became watery.   However, according to House and appellant

himself, appellant was emotional during questioning, and he had

been awake for many hours.   Furthermore, House stated that

nothing about appellant's behavior appeared to be abnormal.      This

evidence, even when added to the other evidence appellant wishes



                                 -6-
us to consider, was insufficient to require an intoxication

instruction.

     Next, appellant asserts that because he could not recall

where he had dropped his weapon, the jury could infer that he had

been highly intoxicated.   A careful reading of the record shows

that, in fact, appellant did remember that he dropped his gun in

a nearby field as he fled the apartment complex.   Again, this

evidence did not support appellant's theory of the case, namely,

that he was too intoxicated to commit first degree murder.
     As the trial court stated:

               This instruction about intoxication, I
          don't think the Court has any credible
          evidence he was intoxicated at the time.
          His actions were pretty irrational. He
          said he used some heroin that night after he
          got off of work. He probably used right
          much. . . . [Nevertheless,] I will refuse
          the instruction. . . . There is no evidence
          of what effect heroin has on him, none
          whatsoever.


The trial court correctly ruled in this regard.    The facts, which

show premeditation and deliberation, reveal that appellant

threatened Finney a day before the shootings, that he armed

himself with a gun, that he located her at his cousin's apartment

on May 20, 1995, that he explained to Finney why he was going to

shoot her, that he asked Finny two questions before shooting her,

that he shot Finney and Haskell numerous times, and that he told

the police that he discarded his gun in a field near the

apartment complex.



                                  -7-
     Because no more than a scintilla of evidence supported a

voluntary intoxication instruction, we find no error in the trial

court's ruling.   For these reasons, we affirm appellant's

conviction.

                                                         Affirmed.




                                -8-
Benton, J., dissenting.


     Craddock proffered the following instruction which the trial

judge refused to give:
          If you find that the defendant was so greatly
          intoxicated by the voluntary use of alcohol
          and/or drugs that he was incapable of
          deliberating or premeditating, then you
          cannot find him guilty of murder in the first
          degree.


     "The overriding purpose of jury instructions is to 'inform

the jury as to the law.'"    Allen v. Commonwealth, 20 Va. App.

630, 639, 460 S.E.2d 248, 252 (1995) (citations omitted), rev'd
on other grounds, ___ Va. ___, ___ S.E.2d ___ (1996).

Premeditation is a factual question to be determined by the jury

upon competent evidence.    Beavers v. Commonwealth, 245 Va. 268,

281, 427 S.E.2d 411, 420, cert. denied, 114 S. Ct. 171 (1993).

Furthermore, the following principle is well established in

Virginia:
            There are certain grades of crime . . . which
            a drunk [person] may not be capable of
            committing. When a [person] has become so
            greatly intoxicated as not to be able to
            deliberate and premeditate, [that person]
            cannot commit murder of the first degree, or
            that class of murder under our statute
            denominated a wilful, deliberate and
            premeditated killing.

Johnson v. Commonwealth, 135 Va. 524, 531, 115 S.E. 673, 675

(1923).

     "'Both the Commonwealth and the defendant are entitled to

appropriate instructions to the jury of the law applicable to

each version of the case, provided such instructions are based



                                 -9-
upon the evidence adduced.'"     Stewart v. Commonwealth, 10 Va.

App. 563, 570, 394 S.E.2d 509, 514 (1990) (quoting Simms v.

Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735 (1986)).

In Virginia, an instruction must be given when it is supported by

more than a scintilla of evidence.       Gibson v. Commonwealth, 216

Va. 412, 417, 219 S.E.2d 845, 849 (1975), cert. denied, 425 U.S.

994 (1976).   At such a low threshold, the evidence must only rise

above "a trifle."     Black's Law Dictionary 1345 (6th ed. 1990).
     When the question on appeal is whether the trial judge erred

in refusing a jury instruction, we must view the evidence in the

light most favorable to the appellant.       Blondel v. Hays, 241 Va.

467, 469, 403 S.E.2d 340, 341 (1991).      In this case, the

Commonwealth's own evidence proved that Craddock was highly

intoxicated at the time of the offense, that Craddock had been

high on drugs all night, and that his mind in that condition "was

running a million miles an hour."       Moreover, the evidence proved

that Craddock could not remember where he dropped the gun or the

direction he ran from the residence.      He began dozing off, while

being interrogated by the police, only a few hours after the

shootings occurred.    In addition, Craddock testified that he used

a large quantity of heroin the night of the killing.

     These facts are consistent with Craddock's defense that he

was greatly intoxicated the night of the killing.      They provide a

sufficient evidentiary basis upon which the jury could have found

as a fact or reasonably inferred that Craddock was so intoxicated



                                 -10-
that he lacked the ability to premeditate.

     Furthermore, the majority states that whether the evidence

provides more than a scintilla of evidence to support the giving

of an instruction "'is largely a factor of determining the weight

of that evidence [supporting the defendant's proposition] in

comparison to the weight of the other credible evidence that

negates the proposition in question.'"      Brandau v. Commonwealth,

16 Va. App. 408, 412, 430 S.E.2d 563, 565 (1993).     That principle

is contrary to well established principles and completely negates

the fact finding role of the jury.      When considering instructions

for the jury, the trial judge must be mindful of the following

principle:
                The jury is not required to accept, in
             toto, either the theory of the Commonwealth
             or that of an accused. They have the right
             to reject that part of the evidence believed
             by them to be untrue and to accept that found
             by them to be true. In so doing, they have
             broad discretion in applying the law to the
             facts and in fixing the degree of guilt, if
             any, of a person charged with a crime.

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

     Thus, it is well-settled that even though there was other

evidence in the record consistent with premeditation, the jury

was not required to believe that evidence.     "Therefore, the trial

[judge] must instruct on both theories to guide a jury in their

deliberations as to the law applicable to the case, depending

upon how the jury decides the facts."      Foster v. Commonwealth, 13

Va. App. 380, 383-84, 412 S.E.2d 198, 200 (1991).     The jury, as



                                 -11-
fact finder, is permitted to believe or disbelieve the testimony

of any witness in whole or in part.    Belton, 200 Va. at 9, 104

S.E.2d at 4.

     The principle is equally well established that in order for

the refusal of an instruction to be error, the appellate court

need not find that the jury would have found in accordance with

the denied instruction, only that it could have so found.

Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193

(1986).   The balancing principle that the majority would delegate

to the trial judge ignores the fundamental principle that "[i]t

is immaterial that the jury might have rejected the [defense

theory]; if there is evidence tending to support the [defense

theory], a trial [judge] errs in refusing an instruction

thereon."   Id.   When the trial judge gave the jury an instruction

on second degree murder but failed to instruct the jury that

intoxication may negate premeditation, the instructions clearly

failed to fully inform the jury as to the applicable law.   The

trial judge's failure to give the proffered instruction,

therefore, deprived Craddock of the right to have the jury fully

instructed on the law applicable to the evidence proved at trial.

 "In Virginia, the weight of the evidence or the inferences to be

drawn from circumstances, is always a matter for the jury, under

proper instructions from the court."    Toler v. Commonwealth, 188

Va. 774, 781, 51 S.E.2d 210, 213 (1949).

     For these reasons, I would reverse the conviction and remand



                                -12-
for a new trial.




                   -13-
