                        COURT OF APPEALS OF VIRGINIA


Present: Judge Annunziata, Senior Judges Willis and Bray*
Argued at Alexandria, Virginia


CHRISTOPHER A. U-THASOONTHORN
                                            MEMORANDUM OPINION ** BY
v.   Record No. 1879-01-4                 JUDGE ROSEMARIE ANNUNZIATA
                                                OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Jane Marum Roush, Judge

             James G. Connell, III (Michael F. Devine;
             Devine & Connell, on briefs), for appellant.

             Steven A. Witmer, Assistant Attorney General
             (Jerry W. Kilgore, Attorney General, on
             brief), for appellee.


     On April 24, 2001, a jury convicted Christopher A.

U-Thasoonthorn of aggravated malicious wounding, in violation of

Code § 18.2-51.2, and sentenced him to twenty years in prison.

On June 29, 2001, the trial court denied U-Thasoonthorn's motion

to set aside the jury's verdict and imposed the sentence

determined by the jury, to wit, twenty years with eight years

suspended.     U-Thasoonthorn appeals his conviction on two


     * Judges Willis and Bray participated in the hearing and
decision of this case prior to the effective date of their
retirement on September 1, 2002 and thereafter by their
designation as a senior judge pursuant to Code § 17.1-401.

     ** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
grounds: (1) the trial court erroneously refused his proffered

jury instruction; and (2) the evidence was insufficient to

sustain his conviction.   For the reasons that follow, we reverse

and remand.

                           I.   Background

     On the evening of October 26, 2000, Jeffrey Putman, Melissa

Steele, and Tess Wenger, U-Thasoonthorn's girlfriend, went out

drinking and returned to Steele's home between 3:00 and

4:00 a.m. on October 27, 2000.    When they returned, Putman and

Wenger engaged in sexual foreplay and went to sleep on a

"hide-a-bed" in Steele's living room.

     At approximately 6:00 a.m. Steele left the house to go to

the airport.   At 6:37 a.m., U-Thasoonthorn used his cell phone

to call Steele on her mobile phone.      Steele testified that he

aggressively asked, "Where's my girlfriend?"     She told him that

Wenger was at her house sleeping and that she was fine.

U-Thasoonthorn told Steele he was going to work.     He did not

arrive at work until about 8:30 a.m. that morning.

     At approximately 7:00 a.m., Steele's neighbor observed a

man fitting U-Thasoonthorn's description walking back and forth

down the middle of the street, looking at the houses.

U-Thasoonthorn subsequently entered Steele's apartment without

permission and walked through the house until he reached the

living room.   He found Putman and Wenger asleep on the

hide-a-bed.    He observed that Putman was wearing only his boxer

                                 - 2 -
shorts and Wenger was wearing the clothes she wore the night

before.

     U-Thasoonthorn unsuccessfully attempted to awaken Wenger.

Putman awoke, however, whereupon U-Thasoonthorn hit him "a lot

of times."    "[He] hit him over and over and over."

U-Thasoonthorn then went to the kitchen and washed blood from

his hands.    He left the house, leaving his cell phone behind.

     U-Thasoonthorn beat Putman so forcefully that he had at

least ten separate fractures of his facial bones, including

multiple fractures of the bones of his eye socket and his

cheekbones.   U-Thasoonthorn also broke Putman's jaw.   Dr. Steven

P. Davidson testified that these injuries were not consistent

with the use of fists or a blunt object.   He noted that Putman's

injuries required "a substantial amount of point impact," caused

by an instrument such as a tool or crowbar.

     After the beating, at approximately 7:20 a.m., another

neighbor observed a man fitting U-Thasoonthorn's description get

into his car and rapidly drive away.    U-Thasoonthorn arrived at

his place of employment at approximately 8:30 a.m. and left at

approximately 11:30 a.m.   Later that evening, he drove from

Fairfax to Blacksburg, Virginia.

     He arrived in Blacksburg at about midnight and met his

friend and fellow Marine, Ray Marotta.   He told Marotta that

"his girlfriend had cheated on him and the guy that . . . she

cheated on him with got beat up when they were together at some

                                - 3 -
apartment."    He told his friend he was scared because he thought

he would be the prime suspect.    He told his friend, "I'm

innocent, I didn't do it."   His friend noticed a cut on the

inside of his hand, which he admitted at trial occurred while he

beat Putman.   Yet, he told Marotta, "I cut my hand at work."

     U-Thasoonthorn knew the police were looking for him.      He

left his car in Blacksburg with Marotta and drove Marotta's car

back to northern Virginia.   Marotta testified that he noticed a

bloodstain on the seatbelt of U-Thasoonthorn's car when they

exchanged cars.   Several days later, U-Thasoonthorn returned to

Blacksburg and cut the bloodstained seatbelt out of his car.

When Marotta asked why there was no seatbelt in the car,

U-Thasoonthorn did not explain.    Rather, he told Marotta that if

he wanted to get a new seatbelt, he would pay for it.

     At trial, the court instructed the jury, in part, as

follows:

           If a person acts upon reflection or
           deliberation, or after his passion has
           cooled or there has been a reasonable time
           or opportunity for cooling, then the act is
           not attributable to the heat of passion.

The court overruled U-Thasoonthorn's objection to this

instruction and declined to give his proffered instruction,

which did not include reference to "cooling off."




                                 - 4 -
                             II.   Analysis

                        A.   Jury Instruction

     U-Thasoonthorn contends that the trial court erred by

giving an instruction that included reference to a "cooling off"

period related to U-Thasoonthorn's heat of passion defense and

by refusing his proffered instruction excluding that principle.

He contends that the evidence did not support the instruction

given.   We agree.

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"   Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted).      In determining

whether a jury instruction should have been refused, we view the

evidence in the light most favorable to the proponent of the

instruction.   Lynn v. Commonwealth, 27 Va. App. 336, 344, 499

S.E.2d 1, 4-5 (1998) (citation omitted), aff'd, 257 Va. 239, 514

S.E.2d 147 (1999).

     "Although an instruction correctly states the law, if it is

not applicable to the facts and circumstances of the case, it

should not be given."   Hatcher v. Commonwealth, 218 Va. 811,

813-14, 241 S.E.2d 756, 758 (1978) (citation omitted).     "No

instruction should be given unless it is supported by evidence,

and such evidence must be more than a scintilla."      Carter v.

Commonwealth, 232 Va. 122, 128, 348 S.E.2d 265, 269 (1986)

                                   - 5 -
(citation omitted); accord Goodson v. Commonwealth, 22 Va. App.

61, 78, 467 S.E.2d 848, 857 (1996) ("'[T]he trial court should

instruct the jury only on those theories of the case which find

support in the evidence.'" (citation omitted)).

           The Virginia appellate courts have not
           defined the term "scintilla." Although this
           term has a generally accepted meaning of "a
           spark" or "the least particle," the precise
           limitations of this term must necessarily be
           determined in the factual context of a
           particular case. The determination whether
           the minimum quantum of credible evidence
           supports a particular proposition is largely
           a factor of determining the weight of that
           evidence in comparison to the weight of the
           other credible evidence that negates the
           proposition in question.

Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430 S.E.2d

563, 565 (1993); see also Winston v. Commonwealth, 16 Va. App.

901, 905, 434 S.E.2d 4, 6 (1993).    Moreover, the jury's possible

rejection of evidence is not a substitute for affirmative

evidence to support a jury instruction.     See Commonwealth v.

Donkor, 256 Va. 443, 446-47, 507 S.E.2d 75, 76 (1998).

      "Generally, a 'cooling off' instruction is sought by the

Commonwealth to enable the jury to find that an accused's

passion kindled by an act of provocation has 'cooled' so as to

enable the accused to regain his or her reason before committing

the [act of violence]."     Lynn, 27 Va. App. at 345, 499 S.E.2d at

5.   "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."     Barrett v. Commonwealth, 231 Va. 102,

                                 - 6 -
106, 411 S.E.2d 190, 192 (1986) (citations omitted).     In

assessing the cooling of passion, "the time to be considered is

the interval between the provocation and the act, not the time

during which the furor brevis controls."     Potter v.

Commonwealth, 222 Va. 606, 610, 283 S.E.2d 448, 450 (1998).

     The evidence at trial, viewed in the light most favorable

to the Commonwealth, does not support the trial court's cooling

off instruction to the jury.   It is beyond dispute that

U-Thasoonthorn was enraged and thus provoked when he found his

girlfriend of eight years, wearing the clothes she wore the

previous night, in bed with another man who wore only his

underwear.   The Commonwealth's evidence suggests that after this

provocation, U-Thasoonthorn tried unsuccessfully to wake Wenger,

obtained a weapon, and beat Putman.    It further contends that

while U-Thasoonthorn attempted to wake Wenger and obtained a

weapon with which to beat Putman, sufficient time elapsed for

his passion to subside and reason to return.    The evidence,

however, fails to support this contention.

     The Commonwealth offered no evidence to prove that

U-Thasoonthorn's passion cooled between the time he was

provoked, obtained a weapon, and beat Putman.    Indeed, nothing

in the record disputes the conclusion that his furor brevis

controlled his actions during this brief period.     See Potter,

222 Va. at 610, 283 S.E.2d at 450 ("While the sufficiency of

time for cooling is a question of fact to be decided by the

                               - 7 -
jury, the time to be considered is the interval between the

provocation and the act, not the time during which the furor

brevis controls.").    Accordingly, "[n]o version of the evidence

established a period elapsed [between the provocation and the

assault during] which reasonably could have been viewed by the

jury as a 'cooling off' period," and an instruction to that

effect was error.     Lynn, 27 Va. App. at 346, 499 S.E.2d at 6.

     Moreover, the trial court's erroneous instruction is not

harmless.   A nonconstitutional error is harmless if "it plainly

appears from the record and the evidence given at trial that the

error did not affect the verdict."       Scott v. Commonwealth, 18

Va. App. 692, 695, 446 S.E.2d 619, 620 (1994) (quoting Lavinder

v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911

(1991) (en banc)).    "'An error does not affect a verdict if a

reviewing court can conclude, without usurping the [fact

finder's] function, that had the error not occurred, the verdict

would have been the same.'"     Id. (citation omitted).

     A conviction for malicious wounding, and thus for

aggravated malicious wounding, requires a finding that the

accused acted with malice and not in the heat of passion.

See Code § 18.2-51.    Under a proper instruction, the jury in

this case may have found that U-Thasoonthorn acted in the heat

of passion and thus was not guilty of aggravated malicious

wounding.   See Miller v. Commonwealth, 5 Va. App. 22, 25, 359



                                 - 8 -
S.E.2d 841, 842 (1987) (noting that malice and passion cannot

co-exist).

     Indeed, whether U-Thasoonthorn acted in the heat of passion

or with malice was the key issue at trial.   U-Thasoonthorn

acknowledged that he committed violence against Putman, but

contended that he acted in the heat of passion.      In addition,

the Commonwealth emphasized to the jury that U-Thasoonthorn did

not act in the heat of passion, because he had an opportunity to

cool but "did not want [his passion] to cool."    In short, we

cannot conclude that the jury would have found U-Thasoonthorn

guilty of aggravated malicious wounding if they had not received

the improper instruction regarding "cooling off."     Therefore,

the trial court's instruction constitutes reversible error.         See

Scott, 18 Va. App. at 695, 446 S.E.2d at 620.

                  B.   Sufficiency of the Evidence

     Notwithstanding the fact that we reverse on the ground that

the trial court erroneously instructed the jury, "we address

appellant's sufficiency of the evidence argument because the

Commonwealth would be barred on double jeopardy grounds from

retrying appellant if we were to reverse for insufficiency of

the evidence."   Timbers v. Commonwealth, 28 Va. App. 187, 202,

503 S.E.2d 233, 240 (1998); see also Hargraves v. Commonwealth,

37 Va. App. 299, 312, 557 S.E.2d 737, 743 (2002); Parsons v.

Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d 810, 812 (2000)

(citing Burks v. United States, 437 U.S. 1, 98 (1978)).

                                - 9 -
U-Thasoonthorn contends that the evidence at trial was

insufficient to prove beyond a reasonable doubt that he intended

to maim, disfigure, disable, or kill Putman and that he acted

with malice.    For the reasons that follow, we disagree.

        When the sufficiency of the evidence is challenged on

appeal, "[w]e view the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible from the evidence."     Cooper v. Commonwealth, 31

Va. App. 643, 646, 525 S.E.2d 72, 73 (2000); accord Hargraves,

37 Va. App. at 312, 557 S.E.2d at 743.    The appellate court

must, therefore, "discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all

the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn" from the credible evidence.

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,

866 (1998).    The credibility of the witnesses and the weight of

the evidence are matters to be determined solely by the trier of

fact.    Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382

S.E.2d 258, 259 (1989).    In addition, the inferences drawn from

the evidence, so long as they are reasonable, are within the

province of the jury.    See Johnson v. Commonwealth, 209 Va. 291,

295, 163 S.E.2d 570, 574 (1968).    Furthermore, the decision of

the trial court will not be disturbed unless plainly wrong or

without evidence to support it.    McGee v. Commonwealth, 25

Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).     "If

                                - 10 -
there is evidence to support the conviction," an appellate court

will not substitute its judgment for that of the trier of fact,

even were its opinion to differ.    Commonwealth v. Presley, 256

Va. 465, 466, 507 S.E.2d 72, 72 (1998).

     To support a conviction for aggravated malicious wounding

under Code § 18.2-51.2, the Commonwealth must prove that the

defendant inflicted the victim's injuries with the intent to

maim, disfigure, disable or kill.    See Robertson v.

Commonwealth, 31 Va. App. 814, 823, 525 S.E.2d 640, 645 (2000)

(citing Campbell v. Commonwealth, 12 Va. App. 476, 483, 405

S.E.2d 1, 4 (1991) (en banc)).     "'Intent is the purpose formed

in a person's mind which may, and often must, be inferred from

the facts and circumstances in a particular case.'"     David v.

Commonwealth, 2 Va. App. 1, 3, 340 S.E.2d 576, 577 (1986)

(quoting Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d

313, 314 (1979)).   "[T]he fact finder is often allowed broad

latitude in determining specific intent of the actor."    Fortune

v. Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25, 27 (1992).

However, when the Commonwealth relies on circumstantial evidence

to prove guilt beyond a reasonable doubt, "all necessary

circumstances proved must exclude every reasonable hypothesis of

innocence."   Bishop v. Commonwealth, 227 Va. 164, 169, 313

S.E.2d 390, 393 (1984).

          Malice inheres in the doing of a wrongful
          act intentionally, or without just cause or
          excuse, or as a result of ill will. It may

                              - 11 -
          be directly evidenced by words, or inferred
          from acts and conduct which necessarily
          result in injury. Whether malice existed is
          a question for the fact finder.

Robertson, 31 Va. App. at 823, 525 S.E.2d at 645 (quotations and

citations omitted).

     U-Thasoonthorn contends that the evidence at trial is

equally susceptible to two interpretations and therefore does

not exclude the reasonable hypothesis that he acted in the heat

of passion and without intent or malice.   He claims that the

jury "arbitrarily adopt[ed] that interpretation which

incriminates him."    Corbett v. Commonwealth, 210 Va. 304, 307,

171 S.E.2d 251, 253 (1969).

     To the contrary, the circumstantial evidence offered by the

Commonwealth, viewed in the light most favorable to its

position, proved that U-Thasoonthorn beat Putman "with the

intent to maim, disfigure, disable or kill [him]," Campbell, 12

Va. App. at 483, 405 S.E.2d at 4, as well as with malice.

First, the brutal nature of the attack supports the jury's

finding of malice and intent.    See Epperly v. Commonwealth, 224

Va. 214, 231, 294 S.E.2d 882, 892 (1982) (evidence demonstrating

savage beating supports finding of malice); Flemming v.

Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991)

("The fact finder may infer that a person intends the immediate,

direct, and necessary consequences of his voluntary acts."

(citation omitted)).   Second, U-Thasoonthorn's actions in


                                - 12 -
covering up the crime indicate that he acted with specific

intent and malice.   See Epperly, 224 Va. at 232, 294 S.E.2d at

893 (holding that defendant's efforts to conceal his crime and

avoid detection support jury's finding that defendant acted

willfully and with malice).   Finally, the jurors disbelieved

U-Thasoonthorn's testimony, the only evidence supporting

U-Thasoonthorn's claim that he acted in the heat of passion, and

were entitled to consider his testimony to be perjured and,

thus, affirmative evidence of his guilt.   See Wright v. West,

505 U.S. 277, 296 (1992); see also Black v. Commonwealth, 222

Va. 838, 842, 284 S.E.2d 608, 610 (1981) ("The fact finder need

not believe the accused's explanation and may infer that he is

trying to conceal his guilt." (citation omitted)).   While no

single piece of evidence is sufficient to sustain

U-Thasoonthorn's conviction, the totality of the evidence proves

beyond a reasonable doubt that he maliciously beat Putman with

intent to kill, maim, disable or disfigure him.   See Stamper v.

Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979).

Therefore, we hold that U-Thasoonthorn may be retried without

violating double jeopardy principles.

     In summary, we reverse U-Thasoonthorn's conviction because

the trial court committed reversible error by instructing the

jury on "cooling off," when the evidence did not support that




                              - 13 -
instruction, and we remand the matter for retrial if the

Commonwealth be so advised.



                                           Reversed and remanded.




                              - 14 -
