                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Humphreys, Petty, Beales, Alston, McCullough, Chafin,
PUBLISHED


                      Decker, O’Brien, Russell and AtLee
            Argued at Richmond, Virginia

            LADAWN SHRIEVES KING
                                                                                  OPINION BY
            v.     Record No. 1684-13-4                                    CHIEF JUDGE GLEN A. HUFF
                                                                                  APRIL 7, 2015
            COMMONWEALTH OF VIRGINIA


                                             UPON REHEARING EN BANC

                                 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                            Brett A. Kassabian, Judge

                           Amy L. Wilson (Amy L. Wilson, PLC, on briefs), for appellant.

                           Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   LaDawn Shrieves King (“appellant”) appeals her convictions for malicious wounding, in

            violation of Code § 18.2-51, and use of a firearm in the commission of a felony, in violation of

            Code § 18.2-53.1. Following a jury trial in the Circuit Court of Fairfax County (“trial court”),

            appellant was sentenced to a total of eight years’ incarceration in the Virginia Department of

            Corrections. On appeal, appellant contends that the trial court erred by failing to properly

            instruct the jury on the defense of accident. For the following reasons, this Court reverses

            appellant’s convictions and remands this matter to the trial court for a new trial, at the discretion

            of the Commonwealth.

                                                    I. BACKGROUND

                   “When reviewing a trial court’s refusal to give a proffered jury instruction, we view the

            evidence in the light most favorable to the proponent of the instruction.” Commonwealth v.
Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002) (citing Blondel v. Hays, 241 Va. 467, 469,

403 S.E.2d 340, 341 (1991)). So viewed, the evidence is as follows.

       At trial, the Commonwealth and appellant presented two different accounts of the events

that transpired. Dwayne King (“King”), appellant’s husband, testified that he and appellant had

been discussing divorce for a year and a half. On the evening of November 20, 2012, King was

rubbing appellant’s head to provide relief for appellant’s migraine. Appellant fell asleep on King’s

lap and, shortly thereafter, King went to sleep on the other couch in the living room. King next

remembered “waking up to a gunshot.” At first, King did not realize he had been shot in the right

forearm, but he noticed appellant “standing on the other side of the couch” with a “gun in [her]

hand.” King reached for his cell phone, but it was no longer in the location he had left it. Appellant

“immediately ran through the kitchen,” and King followed. Upon entering the kitchen, King seized

the house phone, “locked [himself] into the bathroom on the main level,” and called 911. At the

same moment, appellant ran upstairs. While King was on the phone, he heard appellant “come

down the stairs” and the front door slam. Shortly thereafter, King exited the bathroom and “saw

that [appellant’s] vehicle was gone.”

       Appellant testified that on November 20, 2012, she and King were “[i]n over our heads in a

lot of ways.”1 Because of this, appellant decided she “didn’t want to live anymore” and was going

to kill herself using her firearm. Next, appellant explained that she loaded her firearm and took

King’s phone so she could leave a message for him. Afterwards, appellant went downstairs into the

kitchen and sent her son a text message saying she loved him. According to appellant, she then put

the phone down and saw King standing in front of her. King then reached for the firearm in


       1
         Appellant stated that she and King were struggling “financially, emotionally, just in
terms of dealing with [their] children.” Appellant indicated she “felt like [she] was worthless,
not performing up to [her] standards.”

                                                 -2-
appellant’s right hand and attempted to pull it away. During the struggle, the firearm discharged

and wounded King in the right forearm.

            Unaware that King had been injured, appellant “put the gun to [her] head” and attempted

suicide, however, the firearm failed to discharge. Next, appellant immediately ran up the stairs,

locked herself in a bathroom, and attempted suicide again. After the firearm failed to discharge a

second time, appellant grew fearful that the police would arrive and take her to a mental institution.

Consequently, appellant hid the firearm in the upstairs linen closet, ran to her vehicle, and drove

away. At the hospital, King was examined by Dr. Michael Pitta (“Pitta”) who indicated in medical

records that King “was shot by his girlfriend accidentally in his right forearm.” Pitta did not testify

at trial.

            At trial, the jury was given instructions defining malicious wounding2 and malice.3

Instruction 6, in pertinent part, instructed, “You may infer malice from the deliberate use of a

deadly weapon unless, from all the evidence, you have a reasonable doubt as to whether malice

existed.” Appellant relied on an accident theory in her defense and proffered a modified model jury

instruction (“Instruction L”) on accident. The instruction stated:

                      Where the defense is that malicious wounding was an accident, the
                      defendant is not required to prove this fact. The burden is on the

            2
                Instruction No. 4, in relevant part, stated:

                      The defendant is charged with the crime of malicious wounding.
                      The Commonwealth must prove beyond a reasonable doubt each
                      of the following elements of that crime:
                      (1) That the defendant shot Dwayne King; and
                      (2) That such shooting was with intent to kill or permanently
                      maim, disfigure or disable Dwayne King; and
                      (3) That the act was done with malice.
            3
         Instruction B, in relevant part, defined malice as “that state of mind which results in the
intentional doing of a wrongful act to another without legal excuse or justification . . . .”

                                                        -3-
                Commonwealth to prove beyond a reasonable doubt that the
                malicious wounding was not accidental. If after considering all the
                evidence you have a reasonable doubt whether the malicious
                wounding was accidental or intentional, then you shall find the
                defendant not guilty.

The trial court rejected the instruction explaining, “My basis for denying L is that I think the other

instructions adequately instruct the jury as to the fact that it has to be an intentional act, whether or

not it is unlawful wounding, a malicious wounding or assault.”

        During deliberations the jury asked, in writing, two questions. The first question was, “If a

weapon were discharged during a struggle or accidentally, would this constitute a shooting with

intent to kill, as stated in element two of malicious wounding?” The second jury question was,

“What is the legal definition of an unlawful wounding?” Over the objection of defense counsel the

trial court responded to the jury’s questions by stating, “You must rely upon the instructions

previously provided and give the words in each of the instructions their plain and ordinary

meaning.”

        After further deliberations the jury returned its verdict finding appellant guilty of

malicious wounding and use of a firearm in the commission of a felony. Appellant appealed to this

Court and, by memorandum opinion, a panel reversed and remanded. 2014 Va. App. LEXIS 356

(Va. Ct. App. Oct. 28, 2014). Upon motion of the Commonwealth, rehearing en banc was

granted thereby vacating the panel decision and staying the Court’s mandate.

                                    II. STANDARD OF REVIEW

        “As a general rule, the matter of granting and denying instructions . . . rest[s] in the

sound discretion of the trial court.” Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d

185, 187 (2009) (citing Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008)).

The trial court’s “broad discretion in giving or denying instructions requested” is reviewed for an

abuse of discretion. Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778
                                                   -4-
(2003) (en banc). On appeal, this Court’s “‘sole 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.’” Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473

(2006) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)).

       “‘A defendant is entitled to have the jury instructed only on those theories of the case that

are supported by [more than a scintilla of] evidence.’” Eaton v. Commonwealth, 240 Va. 236,

255, 397 S.E.2d 385, 397 (1990) (quoting Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d

267, 280 (1986)). “‘The weight of the credible evidence that will amount to more than a mere

scintilla . . . is a matter to be resolved on a case-by-case basis’ by assessing the evidence in

support of a proposition against the ‘other credible evidence that negates’ it.” Woolridge v.

Commonwealth, 29 Va. App. 339, 348, 512 S.E.2d 153, 158 (1999) (quoting Brandau v.

Commonwealth, 16 Va. App. 408, 411-12, 430 S.E.2d 563, 565 (1993)). “If a proffered

instruction finds any support in credible evidence,” however, “its refusal is reversible error.”

McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975) (citing Taylor v.

Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908 (1947)).

       Additionally, “[w]here the conflicting evidence tends to sustain either the prosecution’s

or defense’s theory of the case, the trial judge must instruct the jury as to both theories.” Foster

v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991) (emphasis added) (citing

Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990)). Phrased

differently, “[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. (emphasis added).

Consequently, “the trial court 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.” Id. (citing

Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986)). Parties are not
                                                 -5-
entitled, however, to duplicative or repetitive instructions covering the same principle of law.

Remington v. Commonwealth, 262 Va. 333, 349, 551 S.E.2d 620, 631 (2001); see also Bagley v.

Weaver, 211 Va. 779, 783, 180 S.E.2d 686, 689 (1971) (“[W]e take the opportunity to condemn

the multiplication of instructions and the requesting and granting of those that are repetitious.

Such action can only confuse and mislead the jury and tends to provoke error.”).

                                         III. ANALYSIS

       On appeal, appellant contends that the trial court erred by failing to properly instruct the

jury on accident. Specifically, appellant contends that there was sufficient evidence in the record

supporting appellant’s accident theory, the proffered instruction was a proper statement of the

law, and, therefore, her proposed accident instruction should have been given.

       During the en banc oral argument, the Commonwealth conceded that appellant’s accident

defense was supported by more than a scintilla of the evidence. While this Court is not bound by

a party’s concessions of law, Crawford v. Commonwealth, 55 Va. App. 457, 481, 686 S.E.2d

557, 569 (2009), this Court holds that more than a scintilla of the evidence, when “view[ed] . . .

in the light most favorable to the proponent of the instruction,” Cooper, 277 Va. at 381, 673

S.E.2d at 187, supported appellant’s proffered instruction. Appellant’s testimony indicated that

she planned to commit suicide on the night of the incident, but King woke up before she could

do so. According to appellant, King attempted to disarm appellant; a struggle ensued. During

the struggle, King reached for appellant’s right arm, which held the firearm, the firearm

accidentally discharged, and King was wounded. This testimony was corroborated by Pitta’s

medical records, which indicated that King was “accidentally” shot in his right forearm. This

evidence, which would support appellant’s accident theory if believed, constitutes more than a

mere scintilla.



                                                -6-
       Notwithstanding, the Commonwealth contends that the instructions given at trial fully

and fairly covered the principles of law at issue. Specifically, the Commonwealth asserts that

because the given instructions on malice required an intentional act, the jury’s verdict reflected a

decision that appellant’s actions were not accidental.

       The Commonwealth’s argument rests primarily on this Court’s decision in Waters v.

Commonwealth, 39 Va. App. 72, 80, 569 S.E.2d 763, 767 (2002). In Waters, defendant was

charged with first-degree murder after pulling up to a group of men, threatening to kill them, and

then shooting the victim. Id. at 75, 569 S.E.2d at 764. At trial, defendant testified that he had

only intended to scare the victim and that the shooting was accidental. Id. The trial court

refused defendant’s proposed jury instruction on accidental killing that stated, “[i]f after

considering all the evidence you have a reasonable doubt whether the killing was accidental or

intentional, then you shall find the defendant not guilty.” Id. at 77-78, 569 S.E.2d at 765. This

Court affirmed the trial court on two grounds. Id. at 78-79, 569 S.E.2d at 766. First, we found

that the principle of law stated in defendant’s instruction had already been covered by previous

instructions.4 Id. Secondly, we held that the proposed instruction improperly stated the law.

Specifically, this Court explained that even if the killing had been accidental, it took place during

a criminal assault and, therefore, would not have absolved defendant of all offenses included in

the charge. Id. at 80, 569 S.E.2d at 767. The opinion explained that “even if the killing had been

an accident . . . it is clear from Waters’ own testimony that the killing occurred in the course of

his commission of a misdemeanor. An accidental killing committed in the course of an

unlawful, nonfelonious act constitutes involuntary manslaughter.” Id. As such, the “proffered

       4
         Defendant’s proposed jury instruction would have correctly informed the jury that the
Commonwealth bore the burden of proving the killing was not an accident. Id. at 78-79, 569
S.E.2d at 766. This Court determined that other instructions sufficiently informed the jury of the
Commonwealth’s burden. Id. at 79, 569 S.E.2d at 766.

                                                -7-
jury instruction, which required an outright acquittal if the jury had a reasonable doubt as to

whether the killing was intentional, was improper under the facts of this case.” Id. This Court

therefore held that because the jury instruction improperly stated the law, the trial court correctly

refused to grant it.5 Id.

        In contrast to this Court’s holding in Waters, the Supreme Court has held that “[w]here

the evidence warrants, an accused is entitled to an instruction presenting his theory of accidental

killing as a defense.” Martin v. Commonwealth, 218 Va. 4, 6, 235 S.E.2d 304, 305 (1977) (per

curiam). In Martin, the defendant was charged with second-degree murder but raised accident as

a defense. Id. at 4, 235 S.E.2d at 304. The defendant’s accident theory was supported by the

evidence, and the defendant proposed an instruction6 regarding accident and the burden of proof.

Id. at 6, 235 S.E.2d at 305. Like Waters, the trial court rejected the instruction on the ground that

other instructions adequately covered the principles of law set forth in the proposed instruction.

Id. The Supreme Court reversed,7 however, explaining that the “accused is entitled to an


        5
         Unlike Waters, the case at bar presented no other charges or instructions against
appellant that would have survived a jury’s verdict based on a finding of accident. Therefore, the
proposed jury instruction on accident was a correct statement of the law, unlike in Waters.
        6
            The proposed instruction read,

                 Where, as in the case at bar, the defense is that the killing was an
                 accident, the defendant is not required to prove this fact, beyond a
                 reasonable doubt, or by a preponderance of the evidence, but the
                 burden is upon the Commonwealth to prove beyond a reasonable
                 doubt that said killing was not accidental; therefore, if after hearing
                 all the evidence, you have a reasonable doubt whether said killing
                 was accidental or that it was intentional, then you should find the
                 defendant . . . not guilty.

Id. at 6, 235 S.E.2d at 305.
        7
          In reversing the trial court, the Commonwealth’s argument that “the substance of the
instruction was covered by other instructions given to the jury,” was specifically rejected. The

                                                  -8-
instruction presenting his theory [of the case].” Id. (citing Jones v. Commonwealth, 196 Va. 10,

15, 82 S.E.2d 482, 485 (1954)). The Supreme Court held that “[i]n none of the instructions

granted by the trial court . . . was the jury told that the burden was upon the Commonwealth to

prove the killing was not accidental and that the jury should acquit the defendant if it entertained

a reasonable doubt whether the death was accidental or intentional.” Id. at 6-7, 235 S.E.2d at

305. The Supreme Court held that “although the jury may have rejected the theory of accidental

killing by finding defendant guilty of murder, because this finding may have resulted from the

mistaken belief that the burden was upon the defendant to prove the killing was accidental, the

error was prejudicial.” Id. at 7, 235 S.E.2d at 305. While Martin dealt with a homicide case,

entitlement to an instruction on a defendant’s theory of defense, when supported by evidence, is

not restricted to homicide cases. See, e.g., Bryant v. Commonwealth, 216 Va. 390, 219 S.E.2d

669 (1975) (defendant accused of rape defending on theory of consent was entitled to an

instruction that “informed the jury that if the act of intercourse was consensual then there could

not be a conviction”).

       In keeping with the analysis in Martin, this Court holds in the present case that appellant

was entitled to her requested finding instruction on the defense of “accident,” because it was

supported by more than a scintilla of the evidence and would have legally entitled her to acquittal

under the circumstances if believed by the jury. Denying an instruction on a defendant’s theory

of defense, if supported by more than a scintilla of the evidence, creates the risk of jury

confusion and misunderstanding, especially when the jury has not otherwise been instructed that

it is the Commonwealth’s burden to disprove the defendant’s theory beyond a reasonable doubt.

unsuccessful position of the Commonwealth had been that the defense theory was adequately
covered by instructions “that the Commonwealth must prove beyond a reasonable doubt every
material and necessary element of the offense charged . . . [and] the defendant is presumed
innocent.”

                                                -9-
See Martin, 218 Va. at 7, 235 S.E.2d at 305. In such circumstances, therefore, a trial court

abuses its discretion by denying a finding instruction on the defense’s theory of the case.

       As applied to the case at bar, the risk of juror confusion would be heightened if a jury

were left to discern the legal principle of “accident” by negative inference from the finding

instruction covering the elements of the offense. This Court’s decision in Waters, 39 Va. App.

72, 569 S.E.2d 763, is therefore overruled to the extent that it is inconsistent with this Court’s

holding herein.

         “[W]hen a principle of law is vital to a defendant in a criminal case, a trial court has an

affirmative duty [to properly] instruct a jury about the matter.” Jimenez v. Commonwealth, 241

Va. 244, 250, 402 S.E.2d 678, 681 (1991). From a review of the record, it is apparent that the

principle of law covering “accident” was vital to the appellant in this case, was supported by

more than a scintilla of the evidence, and was necessary for the jury’s understanding of the

principles of law that were to govern their deliberations. Accordingly, appellant was entitled to

have a properly stated instruction given on her theory of the case, without the need to rely solely

on a negative implication arising from the Commonwealth’s proffered instructions on the law of

malice. See Martin, 218 Va. at 7, 235 S.E.2d at 305 (“[A]lthough the jury may have rejected the

theory of accidental killing by finding defendant guilty of murder, because this finding may have

resulted from the mistaken belief that the burden was upon the defendant to prove the killing was

accidental, the error was prejudicial.”).

                                        IV. CONCLUSION

       Based on the foregoing, this Court finds that the trial court erred by failing to properly

instruct the jury on accident and remands the case to the trial court for a new trial, if the

Commonwealth be so advised.

                                                                      Reversed and remanded.
                                                - 10 -
Humphreys, J., with whom Petty and AtLee, JJ., join, concurring in the judgment.

               [I]t [is] the most sacred constitutional right of every party accused
               of a crime, that the jury should respond as to the facts, and the
               court as to the law. It is the duty of the court to instruct the jury as
               to the law; and it is the duty of the jury to follow the law, as it is
               laid down by the court.

United States v. Battiste, 2 Sumn. 240, 24 F. Cas. 1042, 1043 (No. 14,545) (CC Mass. 1835).

       The Anglo-American right to a trial by jury is now more than seven centuries old and as

enshrined in the Sixth Amendment, our Constitution guarantees that such a trial must be a fair

one. Juries are the sole judges of what the facts in a case are but they are lay men and women

who are expected to digest, understand, and apply legal principles that took the judge and

lawyers involved in the case years of study and education to understand. Those legal principles

are presented to jurors in the form of instructions that, however correct a statement of law they

may be, are often intricate, contradictory, and confusing from a juror’s point of view. Although

this may necessarily be the case because of the complexity of the legal issues involved, trial

courts ought not exacerbate any confusion by denying a defendant a clear and correct instruction

that specifically explains the law with respect to a legally recognized defense theory of

innocence or mitigation of the offense charged.

       I write separately only because the majority opinion may be fairly read to suggest that

this principle only applies to the defense of “accident,” a limitation that, in my view, is

inconsistent with Virginia jurisprudence. This lack of clarity in the majority opinion may result

in unnecessary confusion when trial courts are confronted with a similar situation involving a

defense theory other than “accident.” Furthermore, contrary to the analysis of the majority, I

believe the starting point for the analytical resolution of the assignment of error in this case

should be the general law applicable to all jury instructions rather than just those cases in which

the defense of “accident” is advanced.
                                                - 11 -
       As the majority acknowledges, “[a] defendant is entitled to have the jury instructed only

on those theories of the case that are supported by evidence.” Frye v. Commonwealth, 231 Va.

370, 388, 345 S.E.2d 267, 280 (1986) (emphasis added). But implicit in that holding is the

converse affirmative right to an instruction on a theory of innocence if more than a scintilla of

evidence has been presented to support such theory. Id. Particularly, “when a principle of law is

vital to a defendant in a criminal case, a trial court has an affirmative duty [to properly] instruct a

jury about the matter.” Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681

(1991). “If 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.” Delacruz v. Commonwealth, 11

Va. App. 335, 338, 398 S.E.2d 103, 105 (1990).

       Relying on well-settled Virginia law, the majority correctly holds that appellant was

entitled to a properly stated instruction on her “accident” theory of defense. As the majority

notes, it is not sufficient that the Commonwealth’s proffered instructions may allow argument

that the evidence supports a negative inference that may establish the defendant’s chosen theory

of defense. In my view, it is axiomatic that a defendant is entitled, as a matter of right, to a jury

instruction that affirmatively states the law with respect to the theory of defense, so long as the

defense is recognized by the law, is supported by more than a scintilla of evidence, and the

proposed instruction correctly states the law.

       In Bryant v. Commonwealth, 216 Va. 390, 393, 219 S.E.2d 669, 671 (1975), our

Supreme Court held that a jury instruction based on consent was “crucial to [the appellant’s]

defense,” against a rape charge, reasoning that it could not find that “the instructions granted by

the [trial] court sufficiently informed the jury that if the act of intercourse was consensual there

could not be a conviction.” This Court reached the same conclusion in Mery v. Commonwealth,



                                                 - 12 -
12 Va. App. 821, 407 S.E.2d 18 (1991), a case that preceded Waters, that involved a similarly

affirmative consent instruction in a rape case. We held that,

               [N]one of the jury instructions cited by the Commonwealth
               specifically deals with the issue of consent. Rather, they address
               the subject only by inference. Those instructions specifically
               address the issues of force, resistance, and the overcoming of the
               prosecutrix’s will. We find that their inferential treatment of the
               principle of consent did not adequately instruct the jury on a
               subject that was both vital to [the appellant’s] defense and
               sufficiently supported by the evidence to make it a jury issue.

Id. at 825, 407 S.E.2d at 21. Likewise, in Delacruz, this Court held that the trial court erred in

refusing to offer an instruction on self-defense for a brandishing a firearm charge, reasoning, “it

cannot be fairly said that either instruction fully informed the jury of the right of self[-]defense or

offered the jury the option of finding [the appellant] not guilty.” 11 Va. App. at 339, 398 S.E.2d

at 105-06.

       Applying this principle to a possession of a firearm by a felon case, this Court held,

“because necessity was appellant’s ‘sole defense’ to the charged crime and appellant gave

testimony supporting that defense, the trial court had an affirmative duty to give a corrected

instruction to the jury.” Humphrey v. Commonwealth, 37 Va. App. 36, 51, 553 S.E.2d 546, 553

(2001). This proposition has also been extended to situations where a defendant’s theory of

defense negates an element of an offense, such that the defendant could be convicted of a

lesser-included offense. For example, in Miller v. Commonwealth, 5 Va. App. 22, 24, 359

S.E.2d 841, 842 (1987), we held “[i]f there is any evidence that would support a conviction for

the lesser included offense, the trial court must, upon request of counsel, instruct the jury as to

the lesser included offense.” Finding more than a scintilla of evidence to support defendant’s

heat of passion defense to his charge of malicious wounding, we found the trial court erred in

failing to offer an instruction for unlawful wounding. Id. at 25, 359 S.E.2d at 843.

                                                - 13 -
       Finally, in Cooper v. Commonwealth, 277 Va. 377, 673 S.E.2d 185 (2009),8 an

instruction similar to the one in this case, but relating to the defense of alibi, was proposed. Our

Supreme Court discussed its own inconsistent jurisprudence regarding whether the principle of

law was adequately covered in other instructions and concluded,

               Yet, as a review of our decisions will reveal, alibi instructions have
               been granted in some cases and refused in others when no
               discernible difference is apparent. Eliminating judicial discretion
               will promote uniformity where uniformity is desirable, and it is
               desirable in this instance. Hereafter, the rule will be: grant an
               alibi instruction when [a scintilla of evidence] is present, refuse
               when the evidence is absent.

Id. at 385-86, 673 S.E.2d at 190 (emphasis added).

       Thus, the law in this regard is not unique to the defense of “accident,” as applied in

Martin, and logically extends to all other legally cognizable defenses and we should not suggest

otherwise. If a negative inference as to a criminal defendant’s defense of “accident” in a

malicious wounding case is insufficient, a negative inference is necessarily insufficient as to

other defenses, to a whole host of criminal charges, such as those already noted.9 For these


       8
         Cooper is cited in the majority opinion but only for the standard of review and the
definition of “a scintilla of evidence.”
       9
          Other jurisdictions have similarly applied this principle to legally recognized defenses
beyond “accident.” See e.g., People v. Nunez, 841 P.2d 261, 264 (Colo. 1992) (holding an
instruction embodying a defendant’s theory of the case must be given if the record contains any
evidence to support the theory); State v. Fuller, 506 A.2d 556, 559 (Conn. 1986) (holding “[i]f
the defendant asserts a recognized legal defense and the evidence indicates the availability of that
defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory
of defense instruction”); State v. Weller, 590 So. 2d 923, 927 (Fla. 1991) (finding a defendant is
entitled to an instruction as to any valid defense supported by evidence or testimony in the case);
State v. Taylor, 307 P.3d 1142, 1149 (Haw. 2013) (holding a defendant is entitled to a requested
jury instruction on a defense when he presents some evidence going to the defense); Bouwkamp
v. State, 833 P.2d 486, 490 (Wyo. 1992) (finding that due process considerations entitle criminal
defendants to affirmatively stated theory of the case instructions when the instruction sufficiently
informs the court of the defendant’s theory, is supported by competent evidence, and the offered
instruction presents a defense recognized by statute or case law).

                                               - 14 -
reasons, I also agree with the majority that Waters should be overruled to the extent that it

conflicts with this principle.

        To be clear, I emphatically do not suggest that a defendant has the right to propound his

particular version of a jury instruction resulting in duplicative instructions, or that a correct

instruction of the law regarding a theory of defense propounded by the Commonwealth or the

trial court sua sponte would not suffice. Within the principles outlined, the trial court has the

discretion to determine which instructions to grant or deny from whatever source, provided more

than a scintilla of evidence supports a defendant’s legally recognized theory of defense. The

defendant’s right in this regard has been honored if a jury instruction has been given that

accurately and affirmatively states the law regarding any such cognizable defense.

        Therefore, applying what I believe is the more logical analysis outlined above, I would

hold that because every criminal defendant is entitled to a jury instruction that affirmatively

states the theory of any legally recognized defense, if supported by more than a scintilla of

evidence, and because “accident” is such a defense since if accepted by the jury, proof of such

defense would negate an element of the offense, or otherwise entitle the defendant to an acquittal

or mitigation of the charge and further, because the record in this case clearly establishes that all

of these elements were present, I join my colleagues in reversing the judgment below in this case

and remanding it for a new trial if the Commonwealth is so advised.




                                                 - 15 -
Beales, J., with whom Russell, J., joins, concurring.

       I join the majority opinion to the extent it holds that this case is controlled by Martin v.

Commonwealth, 218 Va. 4, 235 S.E.2d 304 (1977) (per curiam). I write separately to emphasize

that the Supreme Court’s decision in Martin is the reason why we must reverse the trial court in

this case. The present appeal is essentially Martin revisited. In Martin, as in this case, the

defendant requested a jury instruction on “accident.” The proposed instruction in Martin, as with

the proposed instruction in this case, constituted a correct statement of the law and was supported

by more than a scintilla of evidence at trial. The Commonwealth advanced the same argument in

Martin and in this case – that other instructions adequately covered the defense theory of

accident. In both this case and in Martin, the proposed accident instruction was denied. See id.

at 6, 235 S.E.2d at 305.

       Martin is materially indistinguishable from this case, and, therefore, we must reach the

same result as the Supreme Court in Martin because, of course, Supreme Court decisions are

binding on this Court. There, the Supreme Court held,

               In none of the instructions granted by the trial court, however, was
               the jury told that the burden was upon the Commonwealth to prove
               the killing was not accidental and that the jury should acquit the
               defendant if it entertained a reasonable doubt whether the death
               was accidental or intentional. It was error to refuse an instruction
               embodying these propositions.

Id. at 6-7, 235 S.E.2d at 305. The Supreme Court emphasized the effect that the denial of the

proposed accident instruction potentially had on the jury’s understanding of the

Commonwealth’s burden of proof, adding, “And, although the jury may have rejected the theory

of accidental killing by finding the defendant guilty of murder, because this finding may have

resulted from the mistaken belief that the burden was upon the defendant to prove the killing was

accidental, the error was prejudicial.” Id. at 7, 235 S.E.2d at 305. Likewise, the jury in the case

                                               - 16 -
before us today was not instructed that the Commonwealth had the burden of proving that the

shooting was not accidental. Therefore, the instructions given to the jury in this case were

inadequate for precisely the same reason that the Supreme Court identified in Martin.

       Accordingly, the Supreme Court’s decision in Martin absolutely controls the result in this

case. Our analysis does not require any further explanation than that the Supreme Court’s

decision in Martin mandates reversal here. On that narrow basis alone, I concur.10




       10
          Consequently, I agree that the portion of the panel decision in Waters v.
Commonwealth, 39 Va. App. 72, 569 S.E.2d 763 (2002), that is inconsistent with the Supreme
Court’s decision in Martin and with the decision in this case today must be overruled. In the
instant case, unlike in Waters, the Commonwealth conceded at oral argument that an acquittal
would have been proper if the jury had accepted appellant’s defense of accident, given that there
was no remaining offense to convict appellant of on which the jury had been instructed. This
case does not affect the alternative holding in Waters.

                                              - 17 -
                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Huff and Chafin
UNPUBLISHED


              Argued at Alexandria, Virginia

              LADAWN SHRIEVES KING
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1684-13-4                                      JUDGE GLEN A. HUFF
                                                                                 OCTOBER 28, 2014
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                               Brett A. Kassabian, Judge

                               Amy L. Wilson (Amy L. Wilson, PLC, on briefs), for appellant.

                               Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     LaDawn Shrieves King (“appellant”) appeals her convictions for malicious wounding, in

              violation of Code § 18.2-51, and use of a firearm in the commission of a felony, in violation of

              Code § 18.2-53.1. Following a jury trial in the Circuit Court of Fairfax County (“trial court”),

              appellant was sentenced to a total of eight years’ incarceration in the Virginia Department of

              Corrections. On appeal, appellant contends that the trial court erred by failing to properly

              instruct the jury on the defense of accident. For the following reasons, this Court reverses

              appellant’s convictions and remands this matter to the trial court for a new trial, at the discretion

              of the Commonwealth.

                                                      I. BACKGROUND

                     On appeal, “‘we consider the evidence and all reasonable inferences flowing from that

              evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”

              Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       At trial, the Commonwealth and appellant presented two different accounts of the events

that transpired. Dwayne King (“King”), appellant’s husband, testified that he and appellant had

been discussing divorce for a year and a half. On the evening of November 20, 2012, King was

rubbing appellant’s head to provide relief for appellant’s migraine. Appellant fell asleep on King’s

lap and, shortly thereafter, King went to sleep on the other couch in the living room. King next

remembered “waking up to a gunshot.” At first, King did not realize he had been shot in the right

forearm, but he noticed appellant “standing on the other side of the couch” with a “gun in [her]

hand.” King reached for his cell phone, but it was no longer in the location he had left it. Appellant

“immediately ran through the kitchen,” and King followed. Upon entering the kitchen, King seized

the house phone, “locked [himself] into the bathroom on the main level,” and called 911. At the

same moment, appellant ran upstairs. While King was on the phone, he heard appellant “come

down the stairs” and the front door slam. Shortly thereafter, King exited the bathroom and “saw

that [appellant’s] vehicle was gone.”

       Appellant testified that on November 20, 2012, she and King were “[i]n over our heads in a

lot of ways.”1 Because of this, appellant decided she “didn’t want to live anymore” and was going

to kill herself using her firearm. Next, appellant explained she loaded her firearm and took King’s

phone so she could leave a message for him. Afterwards, appellant went downstairs into the kitchen

and sent her son a text message saying she loved him. According to appellant, she then put the

phone down and saw King standing in front of her. King then reached for the firearm in appellant’s




       1
         Appellant stated that she and King were struggling “financially, emotionally, just in
terms of dealing with [their] children.” Appellant indicated she “felt like [she] was worthless,
not performing up to [her] standards.”
                                               -2-
right hand and attempted to pull it away. During the struggle, the firearm discharged and wounded

King in the right forearm.

            Unaware that King had been injured, appellant “put the gun to [her] head” and attempted

suicide, however, the firearm failed to discharge. Next, appellant immediately ran up the stairs,

locked herself in a bathroom, and attempted suicide again. After the firearm failed to discharge

again, appellant grew fearful that the police would arrive and take her to a mental institution.

Consequently, appellant hid the firearm in the upstairs linen closet, ran to her vehicle, and drove

away. At the hospital, King was examined by Dr. Michael Pitta (“Pitta”) who indicated in medical

records that King “was shot by his girlfriend accidentally in his right forearm.” Pitta did not testify

at trial.

            At trial, the jury was given instructions defining malicious wounding2 and malice.3

Appellant relied on an accident theory in her defense and proffered a modified model jury

instruction (“Instruction L”) on accident. The instruction stated:

                      Where the defense is that malicious wounding was an accident, the
                      defendant is not required to prove this fact. The burden is on the
                      Commonwealth to prove beyond a reasonable doubt that the

            2
                Instruction No. 4, in relevant part, stated:

                      The defendant is charged with the crime of malicious wounding.
                      The Commonwealth must prove beyond a reasonable doubt each
                      of the following elements of that crime:

                      (1) That the defendant shot Dwayne King; and

                      (2) That such shooting was with intent to kill or permanently
                      maim, disfigure or disable Dwayne King; and

                      (3) That the act was done with malice.
            3
          Instruction B, in relevant part, defined malice as “that state of mind which results in the
intentional doing of a wrongful act to another without legal excuse or justification . . . .”
Instruction 6, in pertinent part, instructed, “You may infer malice from the deliberate use of a
deadly weapon unless, from all the evidence, you have a reasonable doubt as to whether malice
existed.”
                                                  -3-
                malicious wounding was not accidental. If after considering all the
                evidence you have a reasonable doubt whether the malicious
                wounding was accidental or intentional, then you shall find the
                defendant not guilty.4

The trial court rejected the instruction explaining, “My basis for denying L is that I think the other

instructions adequately instruct the jury as to the fact that it has to be an intentional act, whether or

not it is unlawful wounding, a malicious wounding or assault.”

        During deliberations the jury asked, in writing, two questions. The first question was, “If a

weapon were discharged during a struggle or accidentally, would this constitute a shooting with

intent to kill, as stated in element two of malicious wounding?” The second jury question was,

“What is the legal definition of an unlawful wounding?” Over the objection of defense counsel the

trial court responded to the jury’s questions by stating, “You must rely upon the instructions

previously provided and give the words in each of the instructions their plain and ordinary

meaning.”

        After further deliberations the jury returned its verdict finding appellant guilty of

malicious wounding and use of a firearm in the commission of a felony. This appeal followed.

                                             II. ANALYSIS

                                         A. Standard of Review

        “As a general rule, the matter of granting and denying instructions does rest in the sound

discretion of the trial court.” Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187

(2009) (citing Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008)). On

appeal, “[o]ur ‘sole responsibility in reviewing [jury instructions] is to see that the law has been


        4
         Appellant’s refused jury instruction is taken from Martin v. Commonwealth, 218 Va. 4,
235 S.E.2d 304 (1977). In Martin, the trial court determined that the refusal to instruct the jury
on accident was error because “[i]n none of the instructions granted by the trial court, however,
was the jury told that the burden was upon the Commonwealth to prove the killing was not
accidental and that the jury should acquit the defendant if it entertained a reasonable doubt
whether the death was accidental or intentional.” Id. at 6-7, 235 S.E.2d at 305.
                                                -4-
clearly stated and that the instructions cover all issues which the evidence fairly raises.’” Molina

v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher v. Swisher,

223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). Moreover, “in deciding whether a particular

instruction is appropriate, we view the facts in the light most favorable to the proponent of the

instruction.” Cooper, 277 Va. at 381, 673 S.E.2d at 187.

       Additionally, “an instruction must be supported by more than a scintilla of evidence.”

Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d 756, 758 (1978) (citing Gibson v.

Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975)). “‘The weight of the credible

evidence that will amount to more than a mere scintilla . . . is a matter to be resolved on a

case-by-case basis’ by assessing the evidence in support of a proposition against the ‘other

credible evidence that negates’ it.” Woolridge v. Commonwealth, 29 Va. App. 339, 348, 512

S.E.2d 153, 158 (1999) (quoting Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430

S.E.2d 563, 565 (1992)).

                                     B. Accident Jury Instruction

       On appeal, appellant contends that the trial court erred by failing to properly instruct the

jury on accident. Specifically, appellant contends that because there was sufficient evidence in

the record supporting appellant’s accident theory in the case, the proffered instruction was proper

and should have been given. The Commonwealth contends that the instructions used at trial

fully and fairly covered the principles of law at issue. The Commonwealth asserts that because

the instructions on malice required an intentional act, the jury had to conclude appellant’s actions

were not accidental.

       “‘A defendant is entitled to have the jury instructed only on those theories of the case that

are supported by evidence.’” Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397

(1990) (emphasis added) (quoting Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 257,

                                                -5-
280 (1986)). “When reviewing jury instructions, an appellate court must ensure that the law has

been ‘clearly stated’ and that the ‘instructions cover all issues’ fairly raised by the evidence.”

Mouberry v. Commonwealth, 39 Va. App. 576, 581, 575 S.E.2d 567, 569 (2003) (quoting Tice

v. Commonwealth, 38 Va. App. 332, 339, 563 S.E.2d 412, 416 (2002)). “A trial court should

instruct the jury, when requested to do so, ‘on all principles of law applicable to the pleadings

and the evidence.’” Id. at 582, 575 S.E.2d at 569 (quoting Dowdy v. Commonwealth, 220 Va.

114, 116, 255 S.E.2d 506, 508 (1979)). Indeed, “[i]f a proffered instruction finds any support in

credible evidence, its refusal is reversible error.” McClung v. Commonwealth, 215 Va. 654,

657, 212 S.E.2d 290, 293 (1975) (citing Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d

906, 908 (1947)).

       “Where the conflicting evidence tends to sustain either the prosecution’s or defense’s theory

of the case, the trial judge must instruct the jury as to both theories.” Foster v. Commonwealth, 13

Va. App. 380, 383, 412 S.E.2d 198, 200 (1991) (emphasis added) (citing Delacruz v.

Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990)). Further, “[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. Consequently, “the trial court 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.” Id. (citing Cooper v. Commonwealth, 2 Va. App. 497, 500, 345

S.E.2d 775, 777 (1986)). Parties are not entitled, however, to duplicative instructions covering the

same principle. Remington v. Commonwealth, 262 Va. 333, 349, 551 S.E.2d 620, 631 (2001).

       “[V]iew[ing] the facts in the light most favorable to the proponent of the instruction,” this

Court finds that credible evidence supported appellant’s proffered instruction. Cooper, 277 Va.

at 381, 673 S.E.2d at 187. At trial, King testified in support of the prosecution’s malicious

wounding theory of the case. Specifically, King indicated that he woke up after being

                                                 -6-
deliberately shot by appellant. In contrast, appellant offered a strikingly different account of the

incident. Appellant’s testimony indicated that she planned to commit suicide on the night of the

incident; however, King woke before she could complete the act. According to appellant, King

attempted to disarm appellant while appellant was sending a goodbye message to their child.

During the struggle, King reached for appellant’s right arm, which held the firearm, the firearm

accidentally discharged, and King was wounded. Moreover, appellant’s testimony established

that she did not intend to deliberately harm King but wanted to commit suicide.

        In the very unique facts of this case and while balancing the relevant standards of review,

this defendant was entitled to the instruction at issue. See Cooper, 277 Va. at 381, 673 S.E.2d at

187. Appellant’s testimony amounts to “more than a scintilla of evidence.” Eaton, 240 Va. at

255, 397 S.E.2d at 297. Additionally, the trial court’s response to the jurors’ question, “You

must rely upon [all of] the instructions previously provided and give the words in each of the

instructions their ordinary and plain meaning” is too simplistic given the circumstance presented.

Rather, “when a principle of law is vital to a defendant in a criminal case, a trial court has an

affirmative duty properly to instruct a jury about the matter.” Jimenez v. Commonwealth, 241

Va. 244, 250, 402 S.E.2d 678, 681 (1991). From a review of the record, the principle of law

covering “accident” was vital to the appellant in this case.

        Accordingly, appellant was entitled to have a properly stated instruction given on her

theory of the case, without the need to rely solely on a negative implication arising from the

Commonwealth’s proffered instructions on the law of malice. As appellant’s theory of the case

was supported by more than a scintilla of evidence, the trial court committed an error of law in

failing to grant appellant’s proffered instruction covering her theory of the case. Consequently,

this Court finds that the trial court abused its discretion in failing to properly instruct the jury on

accident.

                                                  -7-
                                        III. CONCLUSION

       Based on the foregoing, this Court finds that the trial court erred by failing to properly

instruct the jury on accident and remands the case to the trial court for a new trial, if the

Commonwealth be so advised.

                                                                             Reversed and remanded.




                                                 -8-
              VIRGINIA:
                            In the Court of Appeals of Virginia on Tuesday        the 9th day of December, 2014.
UNPUBLISHED




              LaDawn Shrieves King,                                                                                Appellant,

              against              Record No. 1684-13-4
                                   Circuit Court No. FE-2013-175

              Commonwealth of Virginia,                                                                            Appellee.


                                                   Upon a Petition for Rehearing En Banc

                                                             Before the Full Court


                     On November 7, 2014 came the appellee, by the Attorney General of Virginia, and filed a petition

              requesting that the Court set aside the judgment rendered herein on October 28, 2014, and grant a rehearing en

              banc on the issue(s) raised in the petition.

                     On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s)

              raised therein, the mandate entered herein on October 28, 2014 is stayed pending the decision of the Court en

              banc, and the appeal is reinstated on the docket of this Court.

                     The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an

              addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

              Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix

              previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies

              of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of

              this Court.
       The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe

Acrobat Portable Document Format (PDF).1



                                        A Copy,
                                               Teste:
                                                                 Cynthia L. McCoy, Clerk

                                               By:

                                                                 Deputy Clerk




       1
       The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”
                                                     -2-
