COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Annunziata and 

 Senior Judge Overton 

Argued at Chesapeake, Virginia 

ANDRE BARBOSA 

 MEMORANDUM OPINION* BY 

v. Record No. 2577-00-1 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 16, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 Steven M. Oser for appellant. 

 Richard B. Smith, Senior Assistant Attorney 

General, (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 On October 23, 2000, Andre Barbosa was convicted at a jury 

trial of aggravated malicious wounding, in violation of Code 

§§ 18.2-51.2(A) and 18.2-10, grand larceny, in violation of Code 

§ 18.2-95, and use of a firearm in the commission of aggravated 

malicious wounding, in violation of Code § 18.2-53.1. He 

received a sentence of 25 years, with 18 years suspended, for 

malicious wounding, three years for the firearm charge, and a 

suspended three-year sentence for grand larceny. 

Barbosa appeals his convictions on the ground that the 

trial court erroneously denied his motion to present a jury 
instruction on self-defense. He contends that the evidence at 

trial supported an instruction of self-defense. The 

Commonwealth contends that the defendant did not preserve this 

question at trial. See Rule 5A:18. Assuming, without deciding, 

that the issue was properly preserved, we find the court did not 

err in refusing to instruct the jury on the law of self-defense 

and affirm Barbosa's conviction. 

Analysis

Because the trial court refused to grant the 

instruction proffered by the accused, we 

view the facts in the light most favorable 

to the defendant. However, an instruction 

is proper only if supported by more than a 

scintilla of evidence. If the instruction 

is not applicable to the facts and 

circumstances of the case, it should not be 

given. Thus, it is not error to refuse an 

instruction when there is no evidence to 

support it. 

Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 

(2001) (citations omitted). If "the evidence [at trial] raised 

factual issues regarding the reasonableness of the force used 

[or] the reasonableness of the perceived threat," it is error to 

refuse a proffered self-defense instruction that correctly 

states the law. Foster v. Commonwealth, 13 Va. App. 380, 384, 

412 S.E.2d 198, 200 (1991). 

 "[T]he law of self-defense is the law of necessity." Foote 

v. Commonwealth, 11 Va. App. 11, 16, 396 S.E.2d 851, 856 (1990). 

Therefore, to support an instruction for self-defense, the 

accused must demonstrate that he "exercis[ed] reasonable force 

- 2 -
to repel the assault." Id. "[T]he amount of force used to 

defend oneself must not be excessive and must be reasonable in 

relation to the perceived threat." Foster, 13 Va. App. at 383, 

412 S.E.2d at 200. "The privilege to use such force is limited 

by the . . . well recognized rule that a person 'shall not, 

except in extreme cases, endanger human life or do great bodily 

harm.'" Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 

S.E.2d 24, 26 (1989) (quoting Montgomery v. Commonwealth, 98 Va. 

840, 843, 36 S.E. 371, 372 (1990)). "Thus, . . . [one] who 

expects to be attacked should first employ the means in his 

power to avert the necessity of self-defence, and, until he has 

done this, his right of self-defence does not arise." Hash v. 

Commonwealth, 88 Va. 172, 192, 13 S.E. 398, 405 (1891). "The 

'bare fear' of serious bodily injury, or even death, however 

well-grounded, will not justify the taking of human life." 

Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 

(2001) (citations omitted). 

 In this case, Barbosa contends that he was entitled to a 

self-defense instruction because there was evidence at trial 

that he "fear[ed] for his physical safety" and that he believed 

that he was about to be brutally beaten by the victim and his 

friends. The evidence, however, viewed in the light most 

favorable to the defendant, makes manifest that Barbosa's use of 

deadly force was not warranted by the perceived impending attack 

by the victim. See id. at 729, 553 S.E.2d at 736. 

- 3 -
 According to Barbosa, the following preceded his admitted 

shooting of the victim in the abdomen: 

[The victim] said – He said, Come here, and 

I started walking towards him; and he was 

like – he started arguing with me; and I 

waved my hand; and I said, Listen – I was 

like, I don't want to argue with you; and he 

was like . . . What are you going to do 

about it? And I was like, Listen, chill; 

and I looked at [my friend] Tom; and he was 

just looking to me to see what was going on. 

You couldn't even tell that we were arguing. 

The dude was just saying mean things. He 

wasn't raising his fists or anything, and 

then he got real close and like real close 

like his face right here; and he said, What 

are you going to do about it? Huh? Huh? 

When he said that, all his friends 

surrounded me; and I just took a step back; 

and I lifted up my shirt; and I put it 

behind the handle [of the gun]; and I said, 

Listen, I got a gun on me. I'm not going to 

fight you. 

And when I did that, his friend grabbed him. 

. . . [The victim's friend, Trini,] said 

Listen, man, chill; and [the victim] told 

his friend F that; and he was like, What are 

you going to do with that? Huh? And he got 

real close – close to me like my chest, and 

I backed up, and I pulled out the gun; and I 

said, Listen, chill; and I put it to him; 

and I was like, Stop; and he was like, You 

ain't going to do nothing; and he tried to 

rush forward; and he was bumping the gun; 

and that's when I was just scared; and I 

took a step back; and I just squeezed the 

trigger; and I just fired. 

 He further testified that he was afraid of receiving a 

"pretty bad" gang beating as he had in the past. During an 

earlier incident, he had suffered a "busted face," and a broken 

rib. However, he admitted that no one had touched him, that the 

- 4 -
victim did not have a weapon, that he was the only one involved 

who had a gun and that the victim had made no threats although 

stating that he wasn't afraid of Barbosa or his gun. He also 

acknowledged that he told his friend Tom Kestler, who was 

present during the incident, "I probably shouldn't have done 

that," suggesting there was no reason to use a gun to defend 

himself. 

 Under these facts, we hold, therefore, that it was not 

"necessary" for Barbosa to use deadly force to avert the 

perceived impending "gang beating." The fact that he was 

surrounded by Serna and his friends and that Serna "bumped into 

his gun," stating he was not afraid, does not constitute an 

"overt act indicative of imminent danger." See Vlastaris v. 

Commonwealth, 164 Va. 647, 651-52, 178 S.E. 775, 776-77 (1935) 

(holding that accused's fear for his life was without foundation 

because victim made no overt act at the time of the shooting). 

Furthermore, we hold that the deadly force Barbosa used in the 

circumstances of this case was not reasonable and proportionate. 

See Hash, 88 Va. at 192, 13 S.E. at 405 ("The party making the 

defence may use no instrument and no power beyond what will 

simply prove effectual."); Foote, 11 Va. App. at 16, 396 S.E.2d 

at 856 (holding that an accused may claim self-defense only if 

the force employed against his potential attacker was necessary 

to repel the assault). Accordingly, Barbosa did not present a 

sufficient evidentiary predicate for a self-defense instruction. 

- 5 -
See Foster, 13 Va. App. at 383, 412 S.E.2d at 200 ("[T]he amount 

of force used to defend oneself must not be excessive and must 

be reasonable in relation to the perceived threat."). 

Affirmed. 

- 6 -