                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Duff
Argued at Alexandria, Virginia


BRYANT LAVAR GAYLES
                                           MEMORANDUM OPINION * BY
v.   Record No. 0961-99-2                   JUDGE CHARLES H. DUFF
                                                 MAY 2, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                        Robert W. Duling, Judge

            Gregory W. Franklin, Assistant Public
            Defender (David J. Johnson, Public Defender,
            on brief), for appellant.

            Marla Graff Decker, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     Bryant Lavar Gayles, appellant, was convicted of first degree

murder.    On appeal, he argues the trial court erred in refusing to

give his proposed jury instruction on self-defense.    Assuming,

without deciding, that the failure to give the instruction was

error, we find the error was harmless.   Therefore, we affirm the

conviction.

                                FACTS

     The evidence proved that on the evening of June 21, 1998,

Robert Kruk was sitting on his front porch when he saw appellant


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
and Christopher Henshaw walking along the street toward his

residence.   Appellant and Henshaw were arguing loudly, and at

one point, they began throwing debris at one another.    Kruk and

Rebecca Swanson, who also saw appellant and Henshaw from her

third floor balcony, both indicated that neither man hit the

other with the bottles and bricks they were throwing.    The two

men then began tussling.   Swanson heard appellant state to

Henshaw, "I will cut you for all you did to me, bitch."

Appellant then retrieved a knife from his duffel bag and fatally

stabbed Henshaw in the chest.

     Appellant walked away from Henshaw, toward a nearby

convenience store.   Before reaching the store, an eyewitness saw

appellant throw a knife over a wall into the courtyard of an

apartment complex.   The police later recovered the knife from

that location.   The police also apprehended appellant shortly

thereafter, and appellant admitted that he "stabbed the bitch."

Appellant had splattered blood on his shorts, shoes and legs.

Officer Preuss reported that appellant laughed about the

incident, and he showed no remorse, even after hearing that

Henshaw was dying.   Appellant stated, "I told that son of a

bitch if he fuck[ed] with me again, I'd kill him."   Appellant

also told the police, "It was fun."

     In an interview with Detective Boswell, appellant

repeatedly asserted that he had cut Henshaw with a broken

bottle, and he denied stabbing Henshaw with a knife.    However,

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the police found no broken bottle, only some broken glass, at

the crime scene.   Appellant claimed that Henshaw had hit him

with a brick, but none of the officers who saw appellant noticed

any injuries on appellant's body.   Appellant also asserted that

he had called 911 earlier that evening after Henshaw threatened

him.   Police records reflected, however, that no 911 calls were

received that evening from the pay telephones where appellant

alleged he made the call.

       At the trial, appellant proffered the following jury

instruction:

            If you believe that the defendant was
            without fault in provoking or bringing on
            the fight, and if you further believe that
            the defendant reasonably feared, under the
            circumstances as they appeared to him, that
            he was in danger of being killed or that he
            was in danger of great bodily harm, then the
            killing was in self-defense and you shall
            find the defendant not guilty.

       The trial court refused to give the instruction, and

appellant appeals that decision.

                              ANALYSIS

       Appellant contends that because Henshaw attacked him with a

brick, then he was entitled to the self-defense instruction.

Assuming, without deciding, that a self-defense instruction

should have been given, the trial court's failure to give the

instruction was harmless error.

       "[N]on-constitutional error is harmless '[w]hen it plainly

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

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the parties have had a fair trial on the merits and substantial

justice has been reached.'"   Lavinder v. Commonwealth, 12 Va.

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (citation

omitted).   "[W]here the reviewing court is able to determine

that the trial court's error in failing to instruct the jury

could not have affected the verdict, that error is harmless."

Turner v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504,

507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997).

     Based upon our examination of the record and evidence

presented in the case, we are satisfied that the failure to give

a self-defense jury instruction did not affect the verdict or

otherwise deprive appellant of a fair trial on the merits.     The

evidence of appellant's guilt was overwhelming.    Several

witnesses saw appellant and Henshaw arguing.   They heard

appellant threaten to "cut" Henshaw for "all he did to [him]."

None of the eyewitnesses saw Henshaw attack appellant with a

brick, and appellant had no injuries after the incident.     During

the scuffle, appellant took the time to retrieve the knife from

his duffel bag, then stabbed the unarmed victim.   He also

disposed of the murder weapon, lied about making 911 calls, and

showed no remorse for Henshaw's death.

     Furthermore, the trial court instructed the jury on the

elements of first degree murder, second degree murder, and

voluntary manslaughter.   In his closing argument, appellant

argued to the jury that he acted in mutual combat, an element of

                               - 4 -
voluntary manslaughter.   See Wilkins v. Commonwealth, 176 Va.

580, 583, 11 S.E.2d 653, 654 (1940).   However, the jury found

appellant guilty of first degree murder.   Thus, the jury found

beyond a reasonable doubt that appellant acted maliciously,

willfully, deliberately and premeditatedly.   See Rhodes v.

Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989).     A

finding of malice excludes a finding of heat of passion.    If

upon being assaulted, "'[the defendant's] resistance with a

deadly weapon be made in a very cruel manner, not at all

justified by the nature of the assault, the inference would be

that malice, not passion, impelled the blow making his crime

murder.'"   Moxley v. Commonwealth, 195 Va. 151, 158, 77 S.E.2d

389, 393 (1953) (citation omitted).

     Furthermore, in the context of the failure to give a

lesser-included offense jury instruction, an error "is harmless

only where the jury's resolution of disputed facts compels the

conclusion that it necessarily excluded an alternative

resolution of fact that would have supported the lesser-included

offense on which it was not instructed."   Turner, 23 Va. App. at

277, 476 S.E.2d at 508.   By convicting appellant of first degree

murder, the jury necessarily rejected appellant's mutual combat

theory and necessarily rejected the factual basis which would

have supported a self-defense claim.   See id. at 277-78, 476

S.E.2d at 508.



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Accordingly, we affirm appellant's conviction.

                                             Affirmed.




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