COURT OF APPEALS OF VIRGINIA 

Present: Judge Annunziata, Senior Judges Duff and Hodges 

Argued at Alexandria, Virginia 

SUSAN JACQUELINE BURNS 

 MEMORANDUM OPINION* BY 

v. Record No. 1459-99-4 JUDGE WILLIAM H. HODGES 

 MAY 30, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Alfred D. Swersky, Judge 

 Paul E. Pepper, Assistant Public Defender, 

for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Susan Jacqueline Burns, appellant, appeals her conviction for 

assault and battery. Appellant contends that the trial court 

erred by applying an objective test, rather than subjective test, 

in denying her claim of self-defense. For the following reasons, 

we find no reversible error and affirm the conviction. 

Facts

 As Susie Wanzer left a CVS store, appellant kicked her in 

the buttocks area. They exchanged words. Appellant grabbed 

Wanzer's shirt and they began fighting. They fell to the ground 

and Wanzer asked appellant to let go of her shirt. Wanzer was 
unaware of bumping appellant, but said that if she had bumped 

appellant, she apologized. CVS employees separated appellant 

and Wanzer. Prior to this incident, Wanzer had never before 

seen appellant. 

 At trial, appellant explained that she kicked Wanzer 

because Wanzer had bumped her. Appellant explained that she 

reacted the way she did because she had been homeless for about 

five months, had been living on the streets and escaping the 

cold by seeking refuge in twenty-four-hour restaurants, was 

sleep deprived, and was on the verge of a nervous breakdown at 

the time of the incident. During the months she was homeless, 

appellant said she had been attacked fifteen or sixteen times, 

and "felt she was a victim of discrimination because she was 

homeless." Appellant said "that because of her physical and 

mental condition," she realized that she had overreacted and was 

sorry she kicked Wanzer. 

 During closing argument, defense counsel argued that 

appellant kicked Wanzer in self-defense. Defense counsel argued 

that appellant's lack of sleep and deteriorating mental health 

led appellant to perceive Wanzer's bumping her as a threat to 

her physical safety and that appellant kicked Wanzer in reaction 

to this threat. 

Discussion

 "Self-defense is an affirmative defense which the accused 

must prove by introducing sufficient evidence to raise a 

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reasonable doubt about his guilt." Smith v. Commonwealth, 17 

Va. App. 68, 71, 435 S.E.2d 414, 416 (1993). "The trier of fact 

determines the weight of evidence in support of a claim of 

self-defense." Gardner v. Commonwealth, 3 Va. App. 418, 426, 

350 S.E.2d 229, 233 (1986). The test of self-defense is whether 

the defendant reasonably feared death or serious bodily harm at 

the hands of his victim, and not whether danger in fact existed. 

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

810 (1978). 

 Appellant failed to present evidence of self-defense 

sufficient to raise a reasonable doubt about her guilt. 

Appellant testified that she kicked Wanzer because Wanzer bumped 

her while leaving the CVS store. Appellant testified that she 

kicked Wanzer because appellant was homeless, sleep deprived, 

and on the verge of a nervous breakdown due to lack of sleep and 

the attacks she had endured while she was homeless. Appellant 

never claimed that she feared death or serious bodily harm from 

Wanzer. Defense counsel made this claim during closing 

argument, which does not constitute evidence. See Curtis v.

Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536, 540 (1987). 

 Although the trial court declined to apply the subjective 

test, and instead applied an objective test when considering 

appellant's self-defense claim, any error was harmless. To be 

harmless, it must plainly appear from the record and the 

evidence that the error did not affect the verdict. See Code 

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§ 8.01-678; Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 

407 S.E.2d 910, 911 (1991) (en banc). Because there was no 

evidence that appellant feared death or serious harm from 

Wanzer, no evidence supported the affirmative defense of 

self-defense. Therefore, even if the trial court had applied 

the subjective test in considering appellant's self-defense 

claim, the verdict would have been the same. Thus, any error 

was harmless. 

 Affirmed.

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