              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UNPUBLISHED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

                                                        original order signed by a deputy clerk of the
                                               By:      Court of Appeals of Virginia at the direction
                                                        of the Court

                                                                     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-
                                             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-
