                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Alston and Senior Judge Bumgardner
UNPUBLISHED


              Argued at Chesapeake, Virginia


              CAROL L. BROOKS
                                                                          MEMORANDUM OPINION * BY
              v.     Record No. 0106-12-1                               JUDGE RUDOLPH BUMGARDNER, III
                                                                               DECEMBER 11, 2012
              COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                             James A. Cales, Jr., Judge

                               Gregory K. Matthews (Office of the Public Defender, on brief), for
                               appellant.

                               (Kennth T. Cuccinelli, II, Attorney General; Victoria Johnson,
                               Assistant Attorney General, on brief), for appellee.


                     Carol L. Brooks appeals her conviction of malicious wounding. She maintains the trial

              court erred by refusing jury instructions on self-defense, heat of passion, and the burden of proving

              self-defense. We conclude the record contains evidence in support of the defenses she asserted, and

              the trial court erred by refusing to instruct on them. Accordingly, we reverse.

                     Barbara Cummings, the victim, received a four-inch cut on her cheek that ran from her ear

              to her jaw, which required seventeen stitches, and left a permanent scar. The Commonwealth

              maintained the defendant deliberately slashed the victim with a knife which was attached to her key

              chain and with which the defendant admitted hitting the victim.

                     The incident began as a dispute between the defendant’s mother, Carolyn Brooks, and the

              victim. When Carolyn Brooks arrived home about 11:00 p.m., she found the victim visiting her

              boyfriend, Ronald Jones, who was Carolyn Brooks’ nephew and lived with her. Carolyn Brooks

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
suspected the victim was using drugs with Jones and ordered them to leave the house. Walking

down the hall, the two women argued, and Carolyn Brooks struck the victim with her cane. Once

outside the house, the victim shouted threats and threw things at the house. Carolyn Brooks called

family members including her daughter, the defendant, and had them take her to the magistrate to

get a warrant. When the group returned, the victim was on the neighbor’s porch, and the argument

renewed.

        The Commonwealth’s evidence showed that when the defendant arrived at her mother’s

house, she went over to the victim, and they began to argue. They were on the neighbor’s front

steps with Jones standing in between to keep them separated. Suddenly, the defendant reached past

Jones and struck the victim. The victim denied making any threatening motions or trying to strike

or kick the defendant.

        The defendant’s evidence showed that when the family members arrived at her mother’s

house, after obtaining a warrant, the victim came from the neighbor’s yard carrying a stick or board

that had a nail in it. The defendant told her mother to get into her house. Carolyn Brooks went

inside and called the police. The argument continued outside between the defendant and the victim.

Atren Watson, the defendant’s boyfriend, testified that the victim swung a stick with a nail in it at

the defendant before the defendant swung back “to defend herself.” Darius Brooks, the defendant’s

son, testified the victim attempted to kick or punch his mother and threw the first punch. The

defendant’s statement to police, which the Commonwealth presented as evidence, stated that the

victim had “tried to kick me, so I reached across him [Jones] and hit her with my key chain with

keys, pocket knife, and key holder.”

        The defendant requested the jury be instructed on self-defense, but the trial court ruled it did

not apply. The trial judge stated, “And you might as well set your self-defense one aside that you

indicated in your question that you might have, because I don’t think it applies.” The trial judge

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explained, “In fact, your key evidence was that she didn’t do it. The nail in the board cut her, so I

really don’t think this is a self-defense case.”

        While the jury deliberated, the defendant tendered Instruction B,1 which was the model

instruction on self-defense without fault. She also requested Instruction A,2 which included the

definition of malice that the trial court did give, but added the second paragraph of the model

instruction that also defined and distinguished heat of passion. Finally, the defendant tendered

Instruction C,3 which explained the defense did not have to prove self-defense beyond a reasonable



        1
                        If you believe from the evidence that the defendant was
                without fault in provoking or bringing on the difficulty, and that
                the defendant reasonably feared, under the circumstances as they
                appeared to her, that she was in danger of harm, then the defendant
                had the right to use such force as was reasonably necessary to
                protect herself from the threatened harm. If you further believe
                that the defendant used no more force that [sic] was reasonably
                necessary to protect herself from the threatened harm, then you
                shall find the defendant not guilty.
        2
                        Malice is that state of mind which results in the intentional
                doing of a wrongful act to another without legal excuse or
                justification, at a time when the mind of the actor is under the
                control of reason. Malice may result from any unlawful or
                unjustifiable motive including anger, hatred or revenge. Malice
                may be inferred from any deliberate, willful, and cruel act against
                another, however sudden.
                        Heat of passion excludes malice when that heat of passion
                arises from provocation that reasonably produces an emotional
                state of mind such as hot blood, rage, anger, resentment, terror or
                fear so as to cause one to act on impulse without conscious
                reflection. Heat of passion must be determined from
                circumstances as they appeared to defendant, but those
                circumstances must be such as would have aroused heat of passion
                in a reasonable person.
        3
                       The defendant has claimed self defense or defense of
                another. To show self-defense or defense of another, the defendant
                need not prove the claim beyond a reasonable doubt, but need only
                show enough evidence to raise a reasonable doubt as to whether
                the Commonwealth has proved every element of their case.

                                                   -3-
doubt, but only had to raise a reasonable doubt whether the Commonwealth had proved every

element of the crime. 4

        When reviewing a trial court’s denial of proffered jury instructions, an appellate court

considers the evidence in the light most favorable to the proponent of the jury instruction. Foster v.

Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991). “‘[I]f there is evidence in the

record to support the defendant’s theory of defense, the trial judge may not refuse to grant a proper,

proffered instruction.’” Id. (citation omitted). It is “well-established . . . that, as with any proffered

instruction that is otherwise a correct statement of law, an instruction on the defense of self-defense

‘is proper . . . if supported by more than a scintilla of evidence’ and ‘it is not error to refuse an

instruction when there is no evidence to support it.’” Commonwealth v. Cary, 271 Va. 87, 100,

623 S.E.2d 906, 913 (2006) (citation omitted).

        The defense evidence supported defendant’s theory that the victim advanced on the

defendant, kicked and swung at her, and then the defendant reacted by striking the victim. It was in

the jury’s province to decide the credibility of the defense witnesses and, if believed, the

reasonableness of the force against the victim’s actions.

        Although the trial court indicated it thought the defendant’s theory was that the board with

the nail caused the wound to the victim’s face, it was clear that the defense was presenting evidence

of self-defense. The Commonwealth’s argument that the defendant was not without fault, because

she approached the victim, or at best the evidence showed mutual combat, does not take the

evidence in the light most favorable to the defendant as the proponent of the instructions.

        The defendant also sought to have the jury instructed on heat of passion.



        4
          As tendered, Instruction C addressed the burden of proving both self-defense and
defense of others. The appeal was not granted on the issue of defense of others. The assignment
of error is limited to “that portion of Instruction C dealing with self-defense.”

                                                   -4-
                      Heat of passion is determined by the nature and degree of the
               provocation and may be founded upon rage, fear, or a combination of
               both. Malice and heat of passion are mutually exclusive; malice
               excludes passion, and passion presupposes the absence of malice.

                      A plea of self-defense and a claim of provoked heat of
               passion do not conflict with each other.

Barrett v. Commonwealth, 231 Va. 102, 106, 341 S.E.2d 190, 192 (1986) (citations omitted).

                      If an accused who had done the same conduct with the same
               mental state and had killed the victim would have committed murder,
               he has committed malicious wounding or malicious bodily injury; if
               the same conduct done with the same mental state killing the victim
               would have been voluntary manslaughter, it is unlawful wounding or
               unlawful bodily injury.

Ronald J. Bacigal, Criminal Offenses & Defenses in Virginia 48 (2010-11 ed.).

               Common law defined manslaughter as the “unlawful killing of
               another” without malice. William Blackstone, Commentaries on
               the Laws of England ch. 14, at 191 (1769). “Voluntary
               manslaughter may be found upon evidence that an intentional,
               non-malicious homicide occurred in sudden mutual combat or as a
               result of heat of passion induced by reasonable provocation. This
               is the customary language of the Virginia cases from early times.”
               John L. Costello, Virginia Criminal Law & Procedure § 3.6-1, at
               64-65 (3d ed. 2002). Unlike murder, which requires malice,
               voluntary manslaughter arises not out of “malignity of heart” but
               from a lack of self-control “imputable to human infirmity.” Willis
               v. Commonwealth, 37 Va. App. 224, 231, 556 S.E.2d 60, 64
               (2001) (quoting Hannah v. Commonwealth, 153 Va. 863, 870,
               149 S.E. 419, 421 (1929)).

                       The furor brevis of voluntary manslaughter can include
               “fear” of harm as well as rage. McClung v. Commonwealth, 215
               Va. 654, 657, 212 S.E.2d 290, 292 (1975). As Professor Bacigal
               explains: “Fear is another emotion that can reduce what would
               otherwise be murder to voluntary manslaughter. If fear was
               adequately and in fact provoked, but is insufficient for self defense,
               the resultant killing is voluntary manslaughter.” Ronald J. Bacigal,
               Criminal Offenses & Defenses in Virginia 358 (2007-08 ed.).
               “Thus it seems the fearful killer is a manslaughterer when his fear
               is produced by facts insufficient to make him a self-defender, e.g.,
               the deadly response was unnecessary or the fear was
               unreasonable.” Id. at 358-59.



                                               -5-
Couture v. Commonwealth, 51 Va. App. 239, 249-50, 656 S.E.2d 425, 430 (2008) (footnotes

omitted).

        Again, viewing the evidence in the light most favorable to the defendant, the witnesses

testified the victim advanced toward the defendant renewing the earlier argument. She carried a

board with a nail in it. If the jury credited the defense witnesses, it could have determined that

defendant’s actions were based on fear and anger, in response to the victim’s kicking and swinging

the board at her, rather than on premeditated deliberation to maliciously wound. Although the given

instructions properly defined malice, the defendant was nevertheless entitled to have heat of passion

defined in support of her theory of defense.

                Both the Commonwealth and the defendant are entitled to
                appropriate jury instructions on the law applicable to their version
                of the case. See Banner v. Commonwealth, 204 Va. 640, 645-46,
                133 S.E.2d 305, 309 (1963). When evidence exists in the record to
                support the defendant’s theory of defense, the trial judge may not
                refuse to grant a proper, proffered instruction. See Painter v.
                Commonwealth, 210 Va. 360, 365, 171 S.E.2d 166, 170-71 (1969);
                Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d
                103, 105 (1990). “[W]here evidence tends to sustain both the
                prosecution’s and the defense’s theory of the case, the trial judge is
                required to give requested instructions covering both theories.”
                Diffendal v. Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24,
                26 (1989).

Byers v. Commonwealth, 37 Va. App. 174, 181-82, 554 S.E.2d 714, 717 (2001).

        There was evidence in support of the self-defense and heat of passion defenses, and the trial

court erred in refusing to instruct on them. Accordingly, the judgment of the trial court is reversed

and the case remanded for a new trial, if the Commonwealth be so advised.

                                                                              Reversed and remanded.




                                                 -6-
