                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia


KEVIN WAYNE HARRIS
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2493-99-2                 JUDGE SAM W. COLEMAN III
                                               JANUARY 16, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       James B. Wilkinson, Judge

            Carl C. Muzi for appellant.

            Steven A. Witmer, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     Kevin Wayne Harris was convicted in a jury trial of

voluntary manslaughter and possession of a firearm by a

juvenile.    On appeal, Harris argues that the evidence is

insufficient to support his voluntary manslaughter conviction.

We disagree and affirm the conviction.




     ∗
       Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                             BACKGROUND

     Viewed from the Commonwealth's perspective, the evidence

proved that on April 1, 1999, the defendant, Kevin Harris, shot

Timothy Wilhite four times, killing him.

     The events which preceded and precipitated the shooting are

that on March 31, 1999, Wilhite's younger brother, Reheim

Balthrop, and Harris' younger brother, David Harris, had a

fistfight.   The next day, the day of the shooting, Balthrop and

David Harris fought again.   Balthrop's older brother, Peter

Boone, broke up the fight by pushing David Harris and Balthrop

to the ground.   As David Harris left crying, he stated, "when I

come back my brother is going to kill all of you."   Later that

day, David and Kevin Harris went back to the area where the

fight had occurred, where Kevin Harris told Boone not to "touch"

David Harris again.   Kevin Harris told Boone, "I will deal with

y'all when I come back," and he left walking toward the nearby

Amoco store.

     Wilhite, Boone, and Wilhite's sister and mother followed

Harris to the Amoco store.   Several other boys, who were also

Wilhite's friends, ran toward the Amoco store, chasing Harris.

Harris entered the store and immediately asked the store clerk

to call the police.   Wilhite followed Harris into the store

where Wilhite and Harris began arguing about the fighting

between their brothers.   Wilhite then struck Harris and they


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began to fight until the store clerk and a patron broke up the

fight.   A store clerk testified that after the fight was broken

up, she thought "everything was all right" and that she saw

Harris hurriedly leave the store.     Wilhite's mother walked out

of the store about the same time as Harris, and Wilhite followed

both of them.   Outside the store, Harris turned to face Wilhite,

and Wilhite took a step toward Harris.    Harris told Wilhite to

"get back."   Harris then pulled a gun from his pocket and fired

five shots, striking Wilhite four times and killing him.    After

he was shot the first time, Wilhite fell backwards.

       No weapon was found on or near Wilhite after the shooting,

and, aside from the defendant's testimony, there was no evidence

that Wilhite had or reached for a weapon before being shot.

       Kevin Harris' version of the evidence differed from the

Commonwealth's.   He testified that on his way to the store, he

encountered two people that had beaten his brother earlier that

day.   Harris testified that the two boys told him they were

going to "beat [him] to death."   Harris did not threaten either

of them.   Rather, he proceeded to the Amoco store.   Before

arriving there, Harris noticed several other people were

"running up the street behind [him]."    Harris recognized Wilhite

as one of the "gang members."   Harris stated that Wilhite had a

reputation for fighting and dealing drugs.    Harris entered the

store and immediately asked the store clerk to call the police.


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Harris testified that he attempted to leave the store through a

back exit, but five or six of the "gang members" were blocking

the exit.   Harris decided to wait in the Amoco store until the

police arrived.   Wilhite came in the store and began striking

Harris.   After the store clerk separated them, Harris ran out of

the store to escape.   Harris testified that, when he got

outside, several of Wilhite's friends were standing there and

when he turned to go back in the store, he saw Wilhite standing

there facing him.   Harris testified that Wilhite again hit him

in the face.   He said that he then saw Wilhite pull a gun from

his pants, at which point Harris pulled his gun and shot Wilhite

four times.    Harris testified that he continued to fire the gun

because he did not believe that he hit Wilhite and Wilhite

continued to "come" at him.

                              ANALYSIS

     "On review of a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to

the Commonwealth, the prevailing party, and grant to it all

reasonable inferences fairly deducible therefrom."    Robertson v.

Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)

(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d

263, 265 (1998)).   "If there is evidence to support the

conviction, an appellate court is not permitted to substitute

its own judgment for that of the finder of fact, even if the


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appellate court might have reached a different conclusion."

Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72

(1998) (citations omitted).   "The credibility of the witnesses

and the weight accorded the evidence are matters solely for the

fact finder who has the opportunity to see and hear that

evidence as it is presented."   Sandoval v. Commonwealth, 20 Va.

App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted).

     Voluntary manslaughter is an unlawful killing done in the

heat of passion and upon reasonable provocation.   Barrett v.

Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192 (1986);

Canipe v. Commonwealth, 25 Va. App. 629, 642-43, 491 S.E.2d 747,

753 (1997).

          In order to show that a killing occurred in
          the heat of passion, the evidence must prove
          the simultaneous occurrence of both
          "reasonable provocation" and "passion."
          "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."

Id. at 643, 491 S.E.2d at 753 (citations omitted).

     Here, the evidence is sufficient to support Harris'

conviction for voluntary manslaughter.   While armed with a

handgun, Harris went to Wilhite's house to confront Wilhite's

brother about assaulting Harris' brother.   Before leaving,

Harris threatened the boys, stating "I will deal with y'all when

I come back."   Wilhite, however, followed Harris to the

convenience store, and the two argued and fought inside the

                              - 5 -
store.   When Harris left the store, before the police arrived,

the store clerk believed that "everything was all right."

Wilhite followed Harris.    Harris faced Wilhite, told him to "get

back," and shot Wilhite four times.    Wilhite was standing three

to five feet away from Harris, and Wilhite was unarmed.     The

Commonwealth's evidence was competent and not inherently

incredible.

     "Self-defense is an affirmative defense which the accused

must prove by introducing sufficient evidence to raise a

reasonable doubt about his guilt."     Smith v. Commonwealth,

17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (citation

omitted).   "Whether the evidence raises such a reasonable doubt

is a question of fact that will not be disturbed on appeal

unless plainly wrong or unsupported by the evidence."      Utz v.

Commonwealth, 28 Va. App. 411, 415, 505 S.E.2d 380, 382 (1998)

(citation omitted).

                 Killing in self-defense may be either
            justifiable or excusable. If it is either,
            the accused is entitled to an acquittal.

                 "Justifiable homicide in self-defense
            occurs [when] a person, without any fault on
            his part in provoking or bringing on the
            difficulty, kills another under reasonable
            apprehension of death or great bodily harm
            to himself."

Smith, 17 Va. App. at 71, 435 S.E.2d at 416 (citations omitted).

     Harris' evidence does not prove as a matter of law that he

acted in self-defense.     See Nelson v. Commonwealth, 168 Va. 742,

                               - 6 -
747, 191 S.E. 620, 622-23 (1937) (recognizing principle that

undisputed facts may establish self-defense as a matter of law);

Hensley v. Commonwealth, 161 Va. 1033, 1034-35, 170 S.E. 568,

568-69 (1933) (finding self-defense as a matter of law where

accused shot and killed victim after victim, in an unprovoked

attack, stabbed the accused in the face); Smith v. Commonwealth,

17 Va. App. 68, 72-73, 435 S.E.2d 414, 417 (1993) (finding

self-defense as a matter of law where defendant arguably

provoked the initial confrontation, attempted to withdraw from

the conflict, had no other reasonable avenue of escape, and took

the only action available to prevent his death or serious bodily

harm); Foote v. Commonwealth, 11 Va. App. 61, 67-69, 396 S.E.2d

851, 855-56 (1990) (finding self-defense as a matter of law

where defendant, who was the victim of an unlawful arrest, used

reasonable force to repel his attacker, who confronted him with

deadly force).   Whether Harris was acting in self-defense was a

factual issue for the jury.   The jury was properly instructed on

the law of self-defense.

     Although Harris contends that Wilhite was the aggressor and

that he, Harris, acted in self-defense, the jury was not

required to believe this testimony.   See Rollston v.

Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).

Moreover, even if the jury believed that Wilhite in some manner

had threatened Harris, by striking Harris again outside the


                              - 7 -
store or by advancing toward him, on this evidence, the jury

could have found that Harris used more force than necessary to

repel the threat.    See Cook v. Commonwealth, 219 Va. 769, 773,

250 S.E.2d 361, 364 (1979) (stating that one "may use only such

force as appears to him reasonably necessary to repel the

attack"); Foote, 11 Va. App. at 69, 396 S.E.2d at 856 (same).

The evidence does not prove as a matter of law that Harris acted

in self-defense.    The jury was instructed on the law of

self-defense and implicitly rejected that claim.

     Accordingly, we find the evidence is sufficient beyond a

reasonable doubt to support the conviction.   We, therefore,

affirm.

                                                            Affirmed.




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