                     COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia


JOSEPH DALE BOWLER
                                           MEMORANDUM OPINION * BY
v.   Record No. 0404-99-4               JUDGE JERE M. H. WILLIS, JR.
                                                MARCH 21, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Thomas S. Kenny, Judge

          (William D. Pickett, on brief), for
          appellant. Appellant submitting on brief.

          Richard B. Smith, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     On appeal from his jury-trial conviction of second degree

murder, in violation of Code § 18.2-32, Joseph Dale Bowler

contends (1) that the trial court erred in refusing his

proffered self-defense instruction, and (2) that the evidence

was insufficient to support his conviction.    We find no error

and affirm the judgment of the trial court.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     On the morning of February 5, 1998, Bowler knocked on a

neighbor's door and said there was a dead woman in his apartment

upstairs.    His pants were bloody, and he requested aid "to take

something downstairs before the police" arrived.      The neighbor

called the police.    The first officer on the scene found

Bowler's girlfriend, Ruby Kibler, lying dead just inside

Bowler's apartment.   She had been stabbed twice.

     Bowler initially told the police that he heard Kibler

banging on the downstairs door and that upon opening the door,

he found her stabbed and bleeding from an attack by an unknown

assailant.   He said that he carried her upstairs to his

apartment, where she died.    Later, after the police pointed out

several inconsistencies in his story, Bowler admitted that he

and Kibler had been together in his apartment, that they had

been drinking heavily, and that they had begun to argue.      He

said that she attacked him with a knife and they fought over the

knife.   He said that in the struggle, they fell down the stairs,

and Kibler was wounded when she fell on the knife.      Bowler said

that he passed out at the foot of the stairs and did not awake

until the next morning.

                        II.   Jury Instruction

     Bowler contends that the trial court erred in refusing to

instruct the jury on self-defense.       He argues that his proffered

instruction was supported by credible evidence.



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     "We are bound by the principle that the accused is

entitled, on request, to have the jury instructed on a lesser

included offense [or affirmative defense] that is supported by

more than a 'scintilla of evidence' in the record."     Bunn v.

Commonwealth, 21 Va. App. 593, 599, 466 S.E.2d 744, 746 (1996)

(citation omitted).   "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).

"'In determining whether to instruct the jury on a

lesser-included offense [or affirmative defense], the evidence

must be viewed in the light most favorable to the accused's

theory of the case.'"   Hunt v. Commonwealth, 25 Va. App. 395,

400, 488 S.E.2d 672, 674 (1997) (citation omitted).

     Bowler relies on his assertion that Kibler attacked him and

they both fell down the stairs in the ensuing struggle.    He does

not claim that he stabbed Kibler to protect himself but asserts

rather that she was stabbed accidentally.

     Bowler's original story, blaming an unknown assailant, does

not support a self-defense instruction.   His subsequent account

supports an instruction on accident, which was given.    At trial,

Bowler argued that he was entitled to a self-defense instruction

because:   "[I]f [the jurors] accept the fact that [Kibler] did,

in fact, pull out a knife on [Bowler] and, as a result of

pulling out the knife, he grabbed the knife and plunged it in

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her, that's self-defense. . . . I think from the evidence that

[the jurors] can accept the fact that Mrs. Kibler picked up the

knife."    The trial court ruled that such a theory presupposed

that Bowler wrested the knife away from Kibler and stabbed her,

an assumption unsupported by the record.   The evidence supports

no other conclusion.

     "The defense that a killing was accidental presents a

different issue from a claim that a killing was done in

self-defense. . . . In making [a claim of self-defense] a

defendant implicitly admits the killing was intentional and

assumes the burden of introducing evidence of justification or

excuse that raises a reasonable doubt in the minds of jurors."

McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810

(1978).    Bowler never contended that he stabbed Kibler to defend

himself.   His assertion that she was stabbed accidentally while

falling down the stairs did not support a self-defense

instruction and that instruction was properly refused.

     We recognize that death may result accidentally from action

taken in self-defense.   Under such circumstances, defenses of

accident and self-defense are not mutually exclusive and

instructions on both defenses should be given upon request.       See

Farrow v. Commonwealth, 197 Va. 353, 89 S.E.2d 312 (1955); Jones

v. Commonwealth, 196 Va. 10, 82 S.E.2d 482 (1954); Braxton v.

Commonwealth, 195 Va. 275, 77 S.E.2d 840 (1953); Valentine v.

Commonwealth, 187 Va. 946, 48 S.E.2d 264 (1948).    However, the

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evidence in this case does not support a claim of self-defense

or the giving of a self-defense instruction.

                  III.   Sufficiency of the Evidence

     Bowler next contends that because no credible evidence

proved malice, the evidence was insufficient to support a

conviction for second degree murder.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom."   Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

     "'The test of murder is malice.   Every malicious killing is

murder either in the first or second degree -- the former if

deliberate and premeditated, and the latter if not.'"   Wooden v.

Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981)

(citation omitted).   "The trier of fact may infer malice from

the deliberate use of a deadly weapon."   Utz v. Commonwealth, 28

Va. App. 411, 415, 505 S.E.2d 380, 382 (1998).   "Circumstantial

evidence is as competent and is entitled to as much weight as

direct evidence, provided it is sufficiently convincing to

exclude every reasonable hypothesis except that of guilt."

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876

(1983).

     Rosetta Jones testified that Bowler and Kibler argued about

whether Kibler was going home to Washington, D.C.   She testified

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that Bowler angrily refused to allow Kibler to leave.      The

medical evidence showed that Kibler suffered two deep stab

wounds.   One wound perforated her left arm.   The other

penetrated her chest to a depth of five or six inches and hit

her aorta.   Although her body was found in Bowler's apartment,

there was a pool of blood at the foot of the stairs, and

bloodstains were found on the walls of the stairwell.      Bowler

did not call for help until Kibler was dead.   He gave the police

inconsistent versions of the incident.

     Sufficient evidence supports a finding that Bowler stabbed

Kibler.   Such an act imputes malice.   Under the evidence, the

jury could reasonably have believed that he stabbed her and

disbelieved that she died by accident.    "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).

     The judgment of the trial court is affirmed.

                                                           Affirmed.




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