COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bumgardner and Frank 

Argued at Alexandria, Virginia 

JOSEPH DALE BOWLER 

 MEMORANDUM OPINION* BY 

v. Record No. 0404-99-4 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 21, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Thomas S. Kenny, Judge 

 (William D. Pickett, on brief), for 

appellant. Appellant submitting on brief. 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 On appeal from his jury-trial conviction of second degree 

murder, in violation of Code § 18.2-32, Joseph Dale Bowler 

contends (1) that the trial court erred in refusing his 

proffered self-defense instruction, and (2) that the evidence 

was insufficient to support his conviction. We find no error 

and affirm the judgment of the trial court. 

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
 On the morning of February 5, 1998, Bowler knocked on a 

neighbor's door and said there was a dead woman in his apartment 

upstairs. His pants were bloody, and he requested aid "to take 

something downstairs before the police" arrived. The neighbor 

called the police. The first officer on the scene found 

Bowler's girlfriend, Ruby Kibler, lying dead just inside 

Bowler's apartment. She had been stabbed twice. 

 Bowler initially told the police that he heard Kibler 

banging on the downstairs door and that upon opening the door, 

he found her stabbed and bleeding from an attack by an unknown 

assailant. He said that he carried her upstairs to his 

apartment, where she died. Later, after the police pointed out 

several inconsistencies in his story, Bowler admitted that he 

and Kibler had been together in his apartment, that they had 

been drinking heavily, and that they had begun to argue. He 

said that she attacked him with a knife and they fought over the 

knife. He said that in the struggle, they fell down the stairs, 

and Kibler was wounded when she fell on the knife. Bowler said 

that he passed out at the foot of the stairs and did not awake 

until the next morning. 

II. Jury Instruction

 Bowler contends that the trial court erred in refusing to 

instruct the jury on self-defense. He argues that his proffered 

instruction was supported by credible evidence. 

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 "We are bound by the principle that the accused is 

entitled, on request, to have the jury instructed on a lesser 

included offense [or affirmative defense] that is supported by 

more than a 'scintilla of evidence' in the record." Bunn v. 

Commonwealth, 21 Va. App. 593, 599, 466 S.E.2d 744, 746 (1996) 

(citation omitted). "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). 

"'In determining whether to instruct the jury on a 

lesser-included offense [or affirmative defense], the evidence 

must be viewed in the light most favorable to the accused's 

theory of the case.'" Hunt v. Commonwealth, 25 Va. App. 395, 

400, 488 S.E.2d 672, 674 (1997) (citation omitted). 

 Bowler relies on his assertion that Kibler attacked him and 

they both fell down the stairs in the ensuing struggle. He does 

not claim that he stabbed Kibler to protect himself but asserts 

rather that she was stabbed accidentally. 

 Bowler's original story, blaming an unknown assailant, does 

not support a self-defense instruction. His subsequent account 

supports an instruction on accident, which was given. At trial, 

Bowler argued that he was entitled to a self-defense instruction 

because: "[I]f [the jurors] accept the fact that [Kibler] did, 

in fact, pull out a knife on [Bowler] and, as a result of 

pulling out the knife, he grabbed the knife and plunged it in 

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her, that's self-defense. . . . I think from the evidence that 

[the jurors] can accept the fact that Mrs. Kibler picked up the 

knife." The trial court ruled that such a theory presupposed 

that Bowler wrested the knife away from Kibler and stabbed her, 

an assumption unsupported by the record. The evidence supports 

no other conclusion. 

 "The defense that a killing was accidental presents a 

different issue from a claim that a killing was done in 

self-defense. . . . In making [a claim of self-defense] a 

defendant implicitly admits the killing was intentional and 

assumes the burden of introducing evidence of justification or 

excuse that raises a reasonable doubt in the minds of jurors." 

McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 

(1978). Bowler never contended that he stabbed Kibler to defend 

himself. His assertion that she was stabbed accidentally while 

falling down the stairs did not support a self-defense 

instruction and that instruction was properly refused. 

 We recognize that death may result accidentally from action 

taken in self-defense. Under such circumstances, defenses of 

accident and self-defense are not mutually exclusive and 

instructions on both defenses should be given upon request. See

Farrow v. Commonwealth, 197 Va. 353, 89 S.E.2d 312 (1955); Jones 

v. Commonwealth, 196 Va. 10, 82 S.E.2d 482 (1954); Braxton v. 

Commonwealth, 195 Va. 275, 77 S.E.2d 840 (1953); Valentine v. 

Commonwealth, 187 Va. 946, 48 S.E.2d 264 (1948). However, the 

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evidence in this case does not support a claim of self-defense 

or the giving of a self-defense instruction. 

III. Sufficiency of the Evidence

 Bowler next contends that because no credible evidence 

proved malice, the evidence was insufficient to support a 

conviction for second degree murder. 

 "Where the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider it in the light most 

favorable to the Commonwealth and give it all reasonable 

inferences fairly deducible therefrom." Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

 "'The test of murder is malice. Every malicious killing is 

murder either in the first or second degree -- the former if 

deliberate and premeditated, and the latter if not.'" Wooden v. 

Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981) 

(citation omitted). "The trier of fact may infer malice from 

the deliberate use of a deadly weapon." Utz v. Commonwealth, 28 

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

evidence is as competent and is entitled to as much weight as 

direct evidence, provided it is sufficiently convincing to 

exclude every reasonable hypothesis except that of guilt." 

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 

(1983). 

 Rosetta Jones testified that Bowler and Kibler argued about 

whether Kibler was going home to Washington, D.C. She testified 

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that Bowler angrily refused to allow Kibler to leave. The 

medical evidence showed that Kibler suffered two deep stab 

wounds. One wound perforated her left arm. The other 

penetrated her chest to a depth of five or six inches and hit 

her aorta. Although her body was found in Bowler's apartment, 

there was a pool of blood at the foot of the stairs, and 

bloodstains were found on the walls of the stairwell. Bowler 

did not call for help until Kibler was dead. He gave the police 

inconsistent versions of the incident. 

 Sufficient evidence supports a finding that Bowler stabbed 

Kibler. Such an act imputes malice. Under the evidence, the 

jury could reasonably have believed that he stabbed her and 

disbelieved that she died by accident. "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). 

 The judgment of the trial court is affirmed. 

 Affirmed.

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