COURT OF APPEALS OF VIRGINIA
Present: Judges Beales , Decker and AtLee Argued at Richmond, Virginia

ANDREW GILBERT SCHMUHL OPINION BY v. Record No . 1572-16-4 JUDGE RANDOLPH A. BEALES SEPTEMBER 11, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Randy I. Bellows, Judge Bradley R. Haywood (Sheldon, F lood & Haywood, PLC; Office of the Public Defender, on briefs), for appellant. Katherine Quinlan Adelfio, Assistant Attorney General (Mark R

. Herring, Attorney General, on brief), for appellee.
A grand jury indicted Andrew Sch muhl (“appellant”) on seven fe lony counts for acts he committed during a home invasion on November 9, 2014. He was c harged with two counts of abduction with intent to gain pecuniary benefit, two counts of aggravated malicious wounding, two counts of using or displaying a firearm during the commissi on of an aggravated malicious wounding, and burglary while arme d with a deadly weapon. Appel lant filed a pretrial notice of his intent to pursue an invol untary intoxication defense. Base d upon this theory, appellant sought to present evidence of his mental state on the night in question. Specifically, appellant intended to show that he was s uffering from “a medication induc ed delirium.” The trial court, however, ruled that such eviden ce was not admissible under appe llant’s involunt ary intoxication defense because appellant did not a rgue that he was insane. Subsequently, after a more than three-week jury trial, appella nt was convicted on all seven cha rges, and he was sentenced to two terms of life in prison plus a n additional 98 years. Following a timely appeal to this Court, wePUBLISHED- 2 - granted six of the twelve assignm ents of error appellant raised in his petition for appeal. 1 We are now reviewing the followi ng assignments of error:
VII. The trial court erred in findi ng that Stamper v. Commonwealth bars evidence of mens rea unless the defendant presents a statutory insanity defense.
VIII. The trial court erred in findi ng that delirium, as well as othe r serious effects of drugs, we re insanity defenses, and not properly the subject of an invol untary intoxication defense. The error derived from applic ation of the wrong standard for distinguishing between int oxication and insanity.
IX. The trial court erred in circums cribing the manner in which the defendant was permitted to prove affirmative defenses, such as by excluding expert evidence , redacting records, and barring the use of certain words.
X. The trial court erred in excluding mental state evidence offere d in support of an unconsciousness defense.
XI. The trial court erred in refusing an unconsciousness jury instruction, finding that unconsciousness merged with intoxication in this case.
XII. The trial court erred in d enying an instruction defining intoxication. For the reasons that follow , we now affirm appellant’s convict ions.
I. B ACKGROUND A. The Home Invasion “Applying familiar principles of appellate revie w, we will sta te the facts in the light most favorable to the Commonwealth,” as we must, because the Commonw ealth was the prevailing party in the trial court. E rvin v. Commonwealth, 57 Va. App. 4 95, 499, 704 S.E.2d 135, 137 (2011) ( en banc ). So viewed, the evidence establ ished that on the evening of November 9, 2014,

1 We have adopted, for the sake of consistency, the numbering co nvention that appellant used in his petition for appeal i n listing his assignments of e rror. We denied appellant’s assignments of error I through VI.- 3 - Leo Fisher (“Fisher”) was in his McLean, Virginia home with his wife, Susan Duncan (“Duncan”). Duncan was prepari ng dinner when she alerted Fishe r that a vehicle had come up their driveway. When the doorbell rang, Fisher answered the do or. As he opened it, an intruder (later determined to be appellan t) pushed the door inward and knocked Fisher off balance, forcing his way into the home. A ppellant used a Taser on Fishe r to subdue him. He also then bound Fisher’s hands and feet w ith plastic zip ties. Hearing what she described as “some weird noises,” Duncan test ified that she went to the foyer where she found Fisher lyi ng on the floor. She stated th at appellant then came toward her, grabbed her, and bound her hands an d feet with zip ties. Appel lant flashed a badge and identified himself as being with the “Virginia SEC.” 2 He said he was arresting Fisher because he claimed that Fisher had “sent an email placing a hit on a membe r of the Knights [Templar],” a drug cartel, in the amount of $370,000. Appellant then forcibly moved t he couple to their back bedroom and closed the curtains. During the move to the bedroom, F isher recognized the intruder as Andrew Schmuhl. Fisher had met appellant on numerous occasions because appellant’s wife, A lecia Schmuhl, had worked as an attorney in the law firm wher e Fisher was the managing partn er. 3 Fisher also testified that he had fired Alecia Schmuhl for pe rformance-related reasons on Oct ober 27, 2014 – approximately two weeks prior to the home inva sion. However, Fisher did not let appellant know that he

2 There is no such government age ncy in the Commonwealth as the “Virginia SEC,” and appellant concedes as much in his opening brief to this Court.

3 Fisher testified that he first met appellant at the firm’s hol iday party in 2013. Appellant had also worked for Fisher’s firm as a contract attorney on a s ingle project. Fisher further recalled that in June 2014, appellan t and his wife came to Fish er’s office at the law firm to discuss an administrative matte r. During the meeting, which la sted approximately ten minutes, Fisher described appellant’s dem eanor as angry and “really aggr essive.” Appellant “kept raising his voice. His voice kept getti ng louder and louder.” Fisher testified that he repeatedly had to ask appellant to leave his office before appellant ultimately l eft.- 4 - recognized appellant because he di d not want to “do anything th at would upset him or get him angry.” In the bedroom, appellant “starte d interrogating [the couple]. ” Fisher stated that appellant “seemed like he had a set of questions in different t opics that he was going to ask us about. And to me he seemed to be g oing through it quite system atically.” Fisher described appellant as “acting like a lawyer taking a deposition,” and he indicated that appellant asked appropriate follow-up questions. Appellant also asked Fishe r, “[D]o you know why anybody would’ ve put a hit on you?” Fisher recounted the specific ex change between him and appellan t to the jurors: “I said, I don’t know why anybody would do that. And [ appellant] said, well, di dn’t you let somebody go lately? And at firs t I wasn’t sure what he meant but he -- I r ealized he was talking about Alecia. He never used her name.” Fishe r acknowledged that he had recen tly fired someone, and, despite the fact that no one had mentioned Alecia’s name, appellant ask ed, “[W]hy was she let go?” When appellant moved the couple fro m the bedroom to the home o ffice, he closed multiple window blinds, which prevented anyone outside the home from observing the events inside. Appellant told the couple that “there might be a snipe r” outside. Both Fisher and Duncan testifie d that appellant communicated w ith a third person during the course of the home invasion. Duncan testified, “Once I sawhim out in the foyer . . . . He was flipping [the outdoor lig hts] on and off signaling somebody .” Another time, Duncan observed that appellant “had t h[e] door wide open and he was st anding [t]here and he was talking to a woman outside.” Fisher test ified that appellant stepped a way from the couple to speak on the phone at least five times during the home invasion. “[A]ft er each call he would say things like, I was just talking to m y partner. Sometimes he would say I was talking to my boss.” Appellant directed Fisher to a ccess and open his office email, which Fisher testified contained- 5 - information on the firm’s employees as well as other informatio n valuable to the firm. Appellant searched through some of the emails and, according to Fisher’s testimony, became frustrated after apparently failing to fi nd the information for which he w as looking. After appellant moved the coupl e back to the bedroom, he separ ated them by placing Duncan in the bathroom. Appellanttold Duncan that separating them was necessary “because there may be things your husband won’t tell me in front of you. ” Fisher testifie d that appellant’s questioning then continued on variou s topics. Appellant asked Fisher whether the couple kept a large amount of money in the house. Fisher testified that he thought, “Maybe he wants money.” He further testified, “And so I said to him, ‘you know, we don’ t have any money here but we can go to the bank.’” Appellant then attacked Fishe r. “[H]e knocked me over, put a pillow over my face and cut my throat on the bed.” Appe llant also stabbed Fisher in th e head and in the left shoulder. Fisher screamed to Duncan, “[H ]e’s killing me!” Duncan, upon l eaving the bathroom, saw appellant “on top of Leo and he w as cutting his throat.” Appel lant yelled, “Get out, ma’am, get out now! Don’t come in here, get ou t!” Duncan testified that she saw appellant raise a gun “[s]o I turned my head but I felt th e bullet hit me. I fell down on the floor. And then I got up, I felt myself getting up and I knew I was alive.” The bullet had graz ed Duncan’s head and had lodged in the ceiling. As Duncan reached for a nearby phone, appellant jumped on her and stabbed her repeatedly across her neck, b ack, and shoulders. Appellant onl y ceased his attacks when Duncan pretended to be dead. As appellan t left the room, Fisher testi fied, “I was on the floor and he came past me and he kicked me in the head . . . . [H]e said, ‘ You’re going to die.’” Duncan hit the panic button on the home’s security system, the reby activating an audible alarm. As she went to call 911, s he saw appellant in the front foyer as he left the house. After- 6 - the police arrived, multiple o fficers noticed the odor of gas, and it was later determined that gasoline had been poured on the r ug in the foyer. No gasoline was on the rug prior to that evening. Fisher and Duncan were able t o observe appellant’s demeanor wh ile he was in their home for approximately three hours. D uncan characterized appellant as “very forceful, authoritative. Very much in control.” Even though appellant argued that he wa s overmedicated, and, thus, involuntarily intoxicated, Duncan testified that appellant did not stumble or slur his speech. Fisher likewise testified tha t appellant did not slur his speec h at any point during the home invasion. B. Pursuit and Arrest of Appellant The first police officers to arri ve at the home found Fisher o n the front porch. Fisher was bleeding severely from his nec k, and Officer Joseph Shifflett t estified that he had to stuff his hands inside the wounds in Fisher’ s neck to slow the bleeding. Despite the severity of his wounds, Fisher was conscious and identified appellant as his at tacker. A “flash message” was then sent to police units t o be on the lookout for appellant’s vehicle. Officer Daniel Custard testifie d that, approximately ten minut es later, he identified appellant’s vehicle, which w as traveling on Interstate 495. Th e officer stated that he activated his vehicle’s lights and siren, but appellant’s vehicle refused to pull over. Officer Custard pursued the vehicle and could see two individuals inside it. C ustard testified that he “observed the passenger in the vehicle reaching all over the vehicle, [he ] appeared to be reaching under the seat and removing his clothing.” After appellant’s vehicle fi nally stopped, police took the dri ver, Alecia Schmuhl, into custody. Appellant exited the vehi cle, “wearing only an adult diaper.” Officer Custard ordered appellant to the ground, and appell ant was responsive to the of ficer’s commands. He then- 7 - handcuffed appellant and placed him in the back of the police v ehicle. After a brief period of time, Custard returned to that po lice vehicle and observed a ch ange in appellant’s condition. He testified, “I noticed that there was a pretty distinct change i n his level of consciousness. When I first spoke to him, he was very l ucid, he was able to answer qu estions easily . . . . [W]hen I returned to him he appeared t o be almost passing out.” Officer Custard further stated that appellant’s eyes were “in the back of his head” and that he “ha d an altered level of consciousness.” Custard asked appellant if he had taken anythi ng illegal or any medications, and appellant told Custard that he had taken Dilaudid and fentanyl. Officer Daniel Curcio observed a ppellant’s demeanor after his arrest and at the hospital. While appellant sat in the bac k of the police vehicle, Officer Curcio noticed that “he was a little lethargic . . . . He seemed like he was kind of dazed, a littl e in and out.” Officer Curcio also testified that appellant brie fly spoke to him in German. Based upon appellant’s condition, Curcio asked appellant’s wife , who was in a different police ve hicle, if appellant had taken any medication. She informed him that appellant had an implant for a back injury. Curcio testified that he believed EMTs on the scen e also removed a fentanyl patc h from appellant’s upper left arm. Later, at the hospital, med ical personnel also removed a second fentanyl patch, which was hidden beneath appellant’s adult diaper. Officer Curcio also h eard appellant tell medical staff that “he had taken a handful of amuscle relaxer,” called Tizan idine. C. Evidence Recovered from Appellant’s Vehicle Officer Matthew Keisling testi fied at trial regarding the phys ical evidence found in appellant’s vehicle. Police r ecovered various pieces of clothi ng – some of which appeared to be stained with blood. The clothing w as wet and smelled strongly of ammonia, and Officer Keisling testified that the odor of ammonia in the vehicle was overwhelming. Police also- 8 - recovered a soda bottle that cont ained a small amount of liquid that smelled strongly of ammonia. In the vehicle’s center console, police recovered a pill bottl e labeled “Tizanidine HCl” – the same muscle relaxer that appellant told officers he had “ta ken a handful of.” They also recovered Alecia Schmuhl’s purse , which contained a list writte n in appellant’s handwriting, according to a handwriting expert w ho testified for the Commonw ealth. The list stated: “handcuffs, two bottles of Nyquil, two packs of Benadryl, adult diapers (male), two sleeping masks (if available).” In a shopping bag, police found a disassembled handgun and fiv e cartridges – one of which had already been fired. They also found a backpack that contained numerous items, including handcuffs, rubber glove s, a blood-stained knife, a pa ckage of zip ties, a box of Benadryl, two bottles of Nyquil, and a dark jacket. Inside the jacket were numerous items, including a Taser, Taser cartri dges (two of which had been fire d, as evidenced by the exposed wires and Taser darts), and a piece of tape that had been used to collect the anti-felon identification devices (AFIDS) tha t a Taser releases when fired . Officer Keisling f urther testified that no cartridges were found in the couple’s home. Police also recovered two prep aid cell phones from the vehicle , one of which had its battery removed and its SIM card broken in half. 4 The phones were activated on November 7, 2014 – two days before the home invasion. On November 9, 2014, numerous calls were made between the two prepaid phones dur ing the time that appellant w as in the victims’ home. One of

4 Officer Brian Bayliss, a membe r of the Fairfax County computer forensic section, testified that “SIM” stands for “subscriber identity module” an d that a cell phone’s SIM card “identifies the person that has the actual subscription or the account that is billed.” Officer Bayliss also testified that “aprepaid phone is very cheap and it can be paid for . . . with cash, and since it’s paid with cash, it’s ve ry difficult to trace back to an actual account holder or subscriber.”- 9 - the prepaid phones was physicall y in the vicinity of the victim s’ home between 6:33 p.m. and 9:46 p.m. After appellant and his wife were taken into custody , police searched their home and recovered their regular pers onal cell phones. T hus, neither ap pellant nor his wife were actually carrying their personal cell phones at the time of their arrest on November 9, 2016, as they had left them at home. D. Pretrial Hearings on the Ad missibility of Expert Witness Te stimony Before trial, on November 20, 2015, defense counsel filed a no tice which stated: Andrew Schmuhl intends to assert at trial that his mental state at the time of the offense met the legal standard for insanity, an d [he] intends to present evidence, inc luding expert testimony, in sup port of this defense. His mental stat e at the time of the offense r esulted from the use of medication. The Commonwealth then filed mo tions to conduct its own evaluati on of appellant’s mental health and to review the report prepared by appellant’s mental health expert. Appellant opposed the Commonwealth’s motions, ar guing that the provisions of Code § 19.2-168.1 and § 19.2-169.5 did not apply to an invol untary intoxication defen se. On November 30, 2015, the trial court conducted a hearing on the Commonwealth’s motions a nd asked defense counsel to clarify his position on whether appellant was asserting an insa nity defense, which entitled the Commonwealth to the motioned-for discovery. The trial judge st ated: I think you have to elect either you have given the Court an insanity notice . . . and I will treat it as such and proceed f rom there or you tell me it’s not an insan ity notice even though when I r ead it I thought it was, but if you tell me it’s not, I believe I have to accept your representation because you get to choose. Defense counsel confirmed, “It’s an involuntary intoxication no tice . . . not an insanity notice,” and based upon this representation, the trial judge denied the Commonwealth’s motions. On December 23, 2015, the trial court conducted a second heari ng to determine whether expert testimony about appellant’ s mental state would be admiss ible at trial. Prior to this- 10 - hearing, the trial judge submitted questions to defense counsel to assist the court in resolving the question of admissibility. 5 However, defense counsel declin ed to answer these questions a nd argued that his client could not be compelled to disclose trial strategy. The judge specifically inquired if defense counsel was willing to resolve the issue of expert witness testimony prior to trial. The trial judge stated: [I]s it your position that this . . . ought not happen until we ’re in the middle of trial after opening s tatement; after you have made representation[s] presumably t o the jury about what they are go ing to hear. That at that point and only at that point will this C ourt be able to make a ruling on the speci fics of an expert testimony? Defense counsel subsequently a cknowledged on the record that he understood the risk of not resolving the issue before tri al. Defense counsel stated: [W]e’ll have to take the time out maybe it’s a two hour hearing

. . . in the middle of trial to determ ine at that point whether the e xpert can testify [to] what we want the m to testify to. If it’s excl uded . . . we are taking that risk. Ultimately, the trial court asked whether defense counsel was “unwilling to make a proffer as to the nature of . . . any expert mental health test imony [that he] wish[ed] to offer prior to trial.” Defense counsel sta ted that he was unwilling to mak e such a proffer, and he further argued that the trial court ran t he risk of violating appellant ’s constitutional rights if the court ordered such a disclosure before trial. As a result, the issue of the admissibility of expert witness testimony remained unresolved before trial.

5 The record indicates that the trial court submitted questions to defense counsel to ascertain “whether you intend to c all a mental health expert wh o will be relying upon any mental health records that may exi st for Mr. Schmuhl and . . . on inte rviews conducted by your mental health experts with Mr. Schmuhl .” The trial court also sought to determine whether expert testimony would be specific to appe llant or whether it would be more general in nature.- 11 - E. The Court’s Rulings During T rial on the Admissibility of Ev idence and on Jury Instructions On May 27, 2016, during the trial, t he trial court conducted ahearing on the admissibility of expert witness testimony. Duri ng that hearing, defense coun sel informed the court about the nature of its expert testim ony. Defense counsel stated: [Appellant] was suffering from . . . a medication induced delir ium. The diagnostic criteria for deli rium include dramatically alter ed mental state that develops over a short period of time, from ho urs to days. It lasts from days t o months, but it is temporary and it eventually results in full r ecovery, often quite rapid. It flu ctuates in severity, meaning it waxes and wanes over the course of the days, weeks, months, however long it lasts. Defense counsel stated that “th e way the law is written, we ar e sitting on a defense that’s premised on temporary insanity,” a nd he argued that the “expert should be permitted to testify in equal degree as one woul d in an insanity case . . . .” Following the hearing, the trial c ourt ruled that appellant co uld not “offer expert mental health testimony in support of its ‘medication-induced delirium ’ defense,” because, “[t]he concern the Court expressed to defense counsel on December 23rd – that ‘what you’re dealing with is in fact an insanity defe nse that is not called an insan ity defense’ – has been realized.” However, the trial court expr essly stated, “Assuming a proper f oundation is laid, this Order does not preclude the defendant fro m calling an expert to address th e toxicological effects of ingested medications.” On June 1, 2016, defense counsel made an additio nal proffer that it intended “to introduce psychiatri c testimony in support of the defense of un consciousness.” Based on this additional proffer, the trial c ourt likewise ruled that appellant was “preclude[d] . . . from offering expert mental health testim ony on an unconsciousness defense.” Pursuant to the court’s deci sion to permit toxicological testi mony but not “psychiatric testimony,” the court did not all ow appellant’s expert witness to use words like “delirium,”- 12 - “psychosis,” “dissociation,” a nd “delusions.” The court also r edacted statements relating to appellant’s psychiatric history f rom appellant’s medical record s, which were admitted at trial. During argument on jury instruc tions, the court refused appell ant’s jury instruction defining and describing “unconscious ness,” finding that the ins truction on involuntary intoxication adequately covere d appellant’s defense of unconsci ousness. The court also refused appellant’s jury instruction defi ning “intoxication,” which the court found to be a word of common usage, and instead permitted the parties to argue the me aning of the word “intoxication” before the jury.
II. A NALYSIS A. Standard of Review “It is well esta blished that the admissibility of expert testim ony is within the sound discretion of the trial court, and that court’s decision will n ot be disturbed absent an abuse of discretion.” Patterson v. Commonwealth, 3 Va. App. 1, 11, 348 S.E.2d 285, 291 (1986). “Only when reasonable jurists coul d not differ can we say an abuse of discretion has occurred.” Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) . “However, to the extent the trial court makes an error of l aw in the admission of evidence, ‘an abuse of discre tion occurs.’” Abney v. Commonwealth, 51 Va. App. 337, 345, 657 S.E.2d 796, 80 0 (2008) (quoting Bass v. Commonwealth, 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000)) . “Furthermore, such evidentiary issues presenting a ‘ question of law’ are ‘reviewed de novo by this Court.’” Id. (quoting Michels v. Commonwealth, 47 Va. App. 461, 465, 624 S.E .2d 675, 678 (2006)). B. The Trial Court’s Interpretation of Stamper Appellant argues that the trial court erred when i t interpreted the Supreme Court’s holding in Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985), to bar evidence of- 13 - mens rea unless a defendant presents an i nsanity defense. We review as signment of error VII de

novo . Abney, 51 Va. App. at 345, 657 S.E.2d at 800. In Stamper, the Supreme Court of V irginia affirmed the trial co urt’s refusal to allow Walter Stamper to introduce evidence that, although he was not insane, he was manic-depressive and in a “manic state” on the da te that he committed the offens e for which he was convicted. 228 Va. at 715-16, 324 S.E.2d at 687. Stamper sought to argue that his diminished mental state rendered him incapable of forming t he intent to distribute, a r equired element for his conviction. Id. at 716, 324 S.E.2d at 687. The Supreme Court rejected Stam per’s argument, declining to recognize diminished capacity as a defense in the Commonwealth and further rejecting the approach that expert evidence c ould be used, in the absence of an insanity defense, to show that Stamper lacked the necessary mens rea . Id. at 716-17, 324 S.E.2d at 688. The Supreme Court in Stamper e xpressly held “that evidence of acriminal defendant’s mental state at the time of the offense is, in the absence of an insanity defense, irrelevant to the issue of guilt.” Id. at 71 7, 324 S.E.2d at 688. The Court not ed that the fundamental reason for the exclusion of this evidence re sts on Virginia’ s adherence, t hrough the M’Naghten rule, to the common law’s use of a “stable and constant standard of mental c ompetence as the criterion for the determination of criminal responsibility.” 6 Id. at 716, 324 S.E.2d at 688. Under the common law and in the Commonwealth, “[a ] person whose mental state fal ls outside the borderline drawn

6 The M’Naghten rule states that to establish a defence on t he ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not t o know the nature and quality of t he act he was doing; or, if he di d know it, that he did not know h e was doing what was wrong. Price v. Commonwealth, 228 Va. 452, 457, 323 S.E.2d 106, 109 (1 984) (quoting M’Naghten’s Case, 10 Cl. and F. 200, 210, 8 Eng. Rep. 718, 722-23 (1843)).- 14 - by that standard is deemed legal ly insane. All persons inside that borderline are ‘presumed to be sane, and to possess a sufficien t degree of reason to be respon sible for [their] crimes.’” Id. at 716-17, 324 S.E.2d at 688 (quoting Price v. Commonwealth, 228 V a. 452, 457, 323 S.E.2d 106, 109 (1984) (quoting M’Naghten’s Case, 10 Cl. and F. 200, 210, 8 Eng. Rep. 718, 722-23 (1843))). In its decision, the Sta mper Court emphasized what h as always been the case in the Commonwealth – i.e., that “there i s no sliding scale of insanity.” Id. at 717, 324 S.E.2d at 688. The reasoning behind a bright-line rule separating the sane, wh o are held criminally responsible, and the insane, who are not, is that the “classifications and g radations applied to mental illnesses, disorders, and defects” are s ubject to frequent revision. Id. at 716, 324 S.E.2d at 688. The resolution of each case cannot be “dependent upon these subtle and shifting gradations.” Id. Appellant argues that the holding i n Stamper is inapplicable to the case at bar because, according to appellant, the Supreme Court in Stamper simply rea ffirmed that the Commonwealth does not recognize the diminishe d capacity defense and reiterat ed that the M’Naghten rule continues to apply to insanity de fenses. He contends that Stamper does not limit evidence of a defendant’s mental state when t he accused utilizes the defense of involuntary intoxication. We disagree for several reasons. First, appellant’s argument attempts to ignore the express hold ing of the Supreme Court in Stamper. The Court made clear that the only way to negate mens rea with evidence of a defendant’s mental state is to plead an insanity defense. 7 The Supreme Court’s holding makes no exception for a defense prem ised on a defendant’s involuntar y intoxication. Since Stamper, this Court has repeatedly held that evidence of a defendant’s m ental state is “immaterial” and

7 This holding is subject to the well-recognized e xception that a defendant charged with capital murder may negate his mens rea for the offense with evidence of his mental state at the time of the offense – without pl eading insanity. Fitzgerald v. Commonwealth, 223 Va. 615, 631, 292 S.E.2d 798, 807 (1982).- 15 - “irrelevant” to the issue of mens rea where the defendant failed to put forth an insanity defense. Id.; see Peeples v. Comm onwealth, 30 Va. App. 626, 633-34, 519 S.E.2d 382, 385 (1999) ( en banc ) (citing Stamper and affirming the trial court’s exclusion of expert testimony about the defendant’s mental disabilit y, offered to support his defenses of heat of passion and self-defense, when he did not allege an insan ity defense); Bowling v. Commonw ealth, 12 Va. App. 166, 172-73, 403 S.E.2d 375, 378-79 (1991) (citing Stamper and affir ming the trial court’s exclusion of expert testimony offered to show t hat the defendant’s “borde rline mental capacity” prevented him from forming the intent t o distribute narcotics, when he di d not allege insanity). Second, the defendant who pleads involuntary intoxication still falls squarely within the rule set in Stamper because involun tary intoxication is recogni zed in the Commonwealth as an alternative basis for an ins anity defense, proven not by showin g that the defendant had a pre-existing mental disease or defect, but by showing that his involuntary intoxication produced a defect in his mens rea that rose to the level of insan ity, as set by the M’Naghten ru le. In Morgan v. Commonwealth, 50 Va. App. 120, 132-34, 646 S.E.2d 899 , 905-06 (2007), we affirmed a trial court’s deci sion to place both the burdens of production and persuasion on the defendant when he pled an “insan ity defense of involuntary into xication.” In Morgan, we referred to the alleged defense a s “the affirmative defense of insanity,” and this Court approved jury instructions that required the defendant to prove “that he was insane due to involuntary intoxication.” Id. at 133, 646 S.E.2d at 905. In Johnson v. C ommonwealth, 135 Va. 524, 115 S.E. 673 (1923), the Supreme Court acknowledged that a defense can be alleged on the basis of a defendant’s involuntary intoxicat ion where the intoxication cau sed either “frenzy” or “madness.” Specifically, the Court in J ohnson stated, “If, however, a pers on by the unskillfulness of his physician, or by the contrivance of his enemies, eat or drink anything which causes frenzy or
madness , he is entitled to the same exemption from punishment for his acts thereby occasioned- 16 - as other madmen.” Id. at 533-34, 115 S.E. at 676 (emphasis add ed) (quoting Davis’ Criminal Law 29). Furthermore, while the Model Jury Instructions in Virginia are certainly not binding precedent, we simply note that the Model Jury Instructions in t he Commonwealth on involuntary intoxication and on insanity support our conclusion that an inv oluntary intoxication defense requires that the defendant prove t hat he was insane as a resul t of the involunt ary intoxication. The Model Jury Instruction on invol untary intoxication largely parallels the instruction for insanity, except for the distin ction that, with involuntary int oxication, the cause of the defendant’s inability to “understand the nature, character and consequences of his act or . . . to distinguish right from wrong,” c omes from his involuntary intox ication – not his mental disease or defect. Compare Model Jury Instrs.—Crim. No. 53.300 (involuntary intoxication), with Model Jury Instrs.—Cr im. No. 53.150 (insanity). In addition, appellant’s argumen t – that the defense of involun tary intoxication is not covered by the rule in Stamper – w ould, if it were the case, al low a defendant who pleads involuntary intoxication to avoid the statutory pleading requir ements. The General Assembly has given the Commonw ealth the statutory right to evaluate a de fendant’s mental state – once the defendant has given notice of intent to place his sanity at iss ue. The Commonwealth may conduct its own evaluation of t he defendant through a different mental health expert appointed by the court, and it may review th e report created by the defen dant’s mental health expert, the results of any “evaluation of the defendant’s sanity at the tim e of the offense,” and copies of records “obtained during the cour se of any such evaluation.” S ee Code §§ 19.2-168, 19.2-168.1, 19.2-169.5. A defendant’s failure to properly and timely compl y with these statutory requirements could result in the defendant’s evidence of his me ntal state being barred at trial. See Code §§ 19.2-168, 19.2-168.1. These statutory procedures – which are not, as appellant- 17 - describes them, a separate “sta tutory insanity defense” – refle ct the principle that “the Commonwealth, like the defendant, i s entitled to a fair trial, which includes ‘the right to a fair rebuttal of mental health evi dence presented by the defendant.’ ” Grattan v. Commonwealth, 278 Va. 602, 622, 685 S.E.2d 634, 645 (2009) (quoting Muhammad v. C ommonwealth, 269 Va. 451, 507, 619 S.E.2d 16, 48 (2005)). Appellant’s argument that he s hould be permitted to present evidence of his mental state be cause he has labeled his defense as “involuntary intoxication” instead of “insanity” would imp roperly allow appellant to circu mvent these statutory requirements. In short, involuntary intoxicati on can be another means to prov e insanity if the defendant can satisfy the M’Naghten rule . In other words , involuntary in toxication only negates mens rea if the accused can show that he met the legal standard for insa nity – that he did not understand the nature, character, and conse quences of his act or that he w as unable to distinguish right from wrong – at the time he committed the offense. The accused may not put forth expert evidence of his mental state as to his sp ecific intent, pursuant to an invo luntary intoxication defense, unless the evidence shows that he passe d the legal threshold of insani ty due to his involuntary intoxication. Therefore, a de fendant who pleads involuntary in toxication in this situation must comply with the statutory re quirements for putting on an insani ty defense. Involuntary intoxication is not a b ack-door way for the introduction of exp ert evidence of a defendant’s mental state. This holding is consistent with the common law tradition in the Commonwealth that insanity is proven only by mee ting the requirements of the M’Naghten rule, consistent with the Supreme Court’s holding in S tamper, and consistent with the statutory procedural requirements set by the General Assembly. By offering expert evidence of his mental state, but refusing t o plead insanity, appellant attempted to avoid the rules tha t dictate how such evidence mus t be disclosed. Appellant- 18 - essentially wants all the bene fits afforded an insanity argumen t without the associated responsibility for notice to the court required by statute and case law. The trial c ourt was correct in finding that the Supreme Cour t in Stamper has precluded the use of evidence of a defendant’s mental state to negate mens rea , unless it arises from an insanit y defense. Therefore, the tr ial court did not err in finding tha t, under Stamper, appellant’s e xpert evidence related to his mental state and mens rea was inadmissible because, although appellant pleaded involunta ry intoxication, he did not plead i nsanity and did not follow the statutory requirements for putting forward an insanity defense. 8 C. The Trial Court’s Finding t hat Appellant Alleged an Insanity Defense Without the Statutorily Required Notice In assignment of error VIII, appel lant argues that the trial co urt erred by finding that his involuntary intoxication defense amounted to an insanity defens e. He argues that his “medication induced delirium” did not amount to insanity becaus e it resulted from his medication, and it “resolved immedia tely after the medications were eliminated or neutralized.”

8 In addition, appellant’s argument that the trial court’s readi ng of Stamper conflicts with existing precedent is easily di smissed. In Fitzgerald v. Commo nwealth, the accused was permitted to offer expert testimony on his intoxicated mental s tate, pursuant to the exception that a defendant, who committed murde r while voluntari ly intoxicated , may negate his mens rea for capital murder without pl eading insanity. 223 Va. at 624-25, 2 92 S.E.2d at 803. This exception applies “when a person voluntarilybecomes so intoxicated that he is incapable of deliberation or premeditation, he cannot commit a class of murder that requires proof of a deliberate and premeditated killing.” Wr ight v. Commonwealth, 234 Va. 627, 62 9, 363 S.E.2d 711, 712 (1988). Because appellant in this case was not charged with capital mur der, the capital murder exception is inapplicable here . Likewise, Pritche tt v. Commonwealth, 263 Va. 182, 557 S.E.2d 205 (2002), is also unpersuasive here. In Pri tchett, the Supreme Court hel d that the trial court erred in excluding expert testimony as t o the hypothetical effect of the defendant’s mental disorder on the reliability of his confession i n a police interview – not as to his mens rea actually to commit the underlying crime. Id. at 187, 557 S.E.2d at 208. The Court in Pritchett did not consider expert evidence of the defendant’s menta l state as to his specific int ent to commit the crime. Therefore, neither the Supreme Court’s hold ing in Fitzgera ld nor in Pritch ett contradicts its clear holding in Stamper, and neither is applicable to the case now before us.- 19 - Despite the numerous assertions by appellant’s counsel that app ellant was not pleading an affirmative defense of insanity, appellant’s counsel stated dur ing his proffer on May 27, 2016: “this is, in essence , it’s a claim of insanity, a claim of temp orary insanity.” Counsel for appellant maintained, however, that the defense was not “the insanity def ense according to statute.” The prosecutor argued, during the M ay 27, 2016 hearing, that appell ant’s defense was premised not on intoxication but on a mental def ect from “medication induced delirium.” Appellant noticed his intent to rely on expert test imony regarding a psychiatric evaluation of appellant and certain “predisposing and prec ipitating factors” lik e “chronic pain, hypertension, stress, sleep deprivation, drug dependence, hist ory of neurological disease[, ] dehydration, and depression” – any combination of which, he ar gued, could have made appellant more susceptible to the delirium. Both the proffered evidence and a ppellant’s assertions demonstr ate that appellant was attempting to negate mens rea by offering expert evidence of hi s mental state. Whether appellant’s alleged lack of mens rea for the charged offenses res ulted from the intoxicating substances that he consumed 9 or from a mental defect cause d by “predisposing and precipitat ing factors,” his argument here i s without merit. An accused can c ompletely negate the required

mens rea for the crimes charged by showi ng that he met the legal standa rd for insanity. Therefore, the trial court di d not err here in concluding that appellant’s claim to lack mens rea for the offenses, which he trie d to prove in part by the admiss ion of evidence of his mental state, was actually an insanity defense . We need not decide for the p urposes of this appeal whether his defense was premised on a menta l defect or on involuntary intox ication. Appellant could have

9 Here, the jury, as factfinder, m ay well have found appellant’s testimony that he was involuntarily intoxicated to be inc redible, as appellant took the drugs himself and was using at least one medication – the fentanyl patches – in a dosage twice as high as his prescription allowed.- 20 - shown a viable defense to negate mens rea by proving insanity, but he fai led to do so or even to follow the required statutory pr ocedures that would have allowe d him to put on such a defense. D. The Trial Court’s Exclusion of Evidence of Appellant’s Ment al State to Show Unconsciousness and Its Limita tion of Psychiatric Testimony In assignment of error X, appellant argues that “[t]he trial co urt erred in excluding mental state evidence offered in suppor t of an unconsciousness defense .” 10 In assignment of error IX, appellant argues that “[t]he tr ial court erred by circumscribin g the manner in which the defendant was permitted to prove affirmative defenses, such as by excludi ng expert evidence, redacting records, and barring the use of certain words.” Appellant ackn owledges that a trial court’s decision on the admissibility of evi dence is reviewed for an ab use of discretion. See Abney, 51 Va. App. at 345, 657 S.E.2d at 800. Our Supreme Court has defined “ ‘unconsciousness’ as a state of mind of persons of
sound mind suffering from some voluntary or involuntary agency rendering them unaware of their acts.” Riley v. Commonwealth, 277 Va. 467, 479, 675 S.E. 2d 168, 175 (2009) (emphasis added) (quoting Greenfiel d v. Commonwealth, 214 Va. 710, 714, 2 04 S.E.2d 414, 417 (1974)). The trial court here refused t o admit evidence relating to appe llant’s unconsciousness defense because it found that the proposed evidence was essentially an effort to put on an insanity defense without calling it such so as to s how that appellant lacked the necessary mens rea – and that appellant was, therefore , directly prohibited from doing s o by Stamper.

10 We note that the Supreme Court in Riley v. Commonwealth, 277 V a. 467, 479 n.9, 675 S.E.2d 168, 175 n.9 (2009) (emphasis added), simply “ assume[d], without deciding , that unconsciousness is a defense to cri minal charges other than jus t homicide” when it affirmed the convictions for driving while i ntoxicated and maiming another p erson as a result of driving while intoxicated. The Supreme Court has not actually decided that u nconsciousness is a defense to criminal charges not involving homicide.- 21 - Even assuming without deciding that the trial court erred in ex cluding this evidence, any error was harmless. 11 Appellant argues that the tri al court abused its discretion b y essentially rendering the defense of unconsci ousness unavailable to Schmuhl . As appellant raises a challenge related to the admissi bility of evidence, “[w]e exami ne this claim under the standard for non-constitutional harmless error.” Salahuddin v. Commonwe alth, 67 Va. App. 190, 211-12, 795 S.E.2d 472, 483 (2017); see Carter v. Commonwealth, 293 Va. 537, 544-46, 800 S.E.2d 498, 501-02 (2017) (applying a non-cons titutional standard to determ ine that any error was harmless that the trial court committed in refusing to admit certain evi dence supporting a defendant’s claim of self-defense). The standard for non-constitutional error is established in Cod e § 8.01-678, which provides, in pertinent part: When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arre sted or reversed . . . [f]or any . . . def ect, imperfection, or omis sion in the record, or for any error committed on the trial. Error is harmless when we are able to conclude “with fair assur ance, after pondering all that happened without stripping the err oneous action from the whole, that the judgment was not substantially swayed by the e rror.” Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v. United States, 328 U.S. 750 , 764-65 (1946)). “[H]armless error analysis . . . [is not] simpl y a sufficiency of the evide nce analysis.” Hooker v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 (1992), quoted with approval in Williams v. Commonwealth, 32 Va. App. 395, 400, 528 S.E.2d 166, 169 (2000) ( en banc ); see

11 Because we find that appellant’s arguments that relate to evid ence offered in support of his unconsciousness defense are ad equately resolved with a harm less error analysis, we decline to consider the issue on the mer its, following the principle th at “an appellate court decides cases ‘on the best and narrowest gr ound available.’” Luginbyhl v. Co mmonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) ( en banc ).- 22 - Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978). The appellate court must “examin[e] the excluded evi dence in light of the entire re cord.” Commonwealth v. Proffitt, 292 Va. 626, 642, 792 S.E.2d 3, 11 (2016). The record reflects that appe llant was not unconscious during the attack. It shows he planned and completed the home invasion with precision, clarity , and control. Appellant handwrote a shopping list ahead of the attack with the items he needed: “handcuffs, two bottles of Nyquil, two packs of Benadryl , adult diapers (male), two sle eping masks (if available).” Appellant disguised himself, for ced his way into the house, and attempted to maintain a fake identity during the entire encounter. Testimony from Fisher an d Duncan revealed that appellant did not stumble and did not slur hi s words during the three hou rs that he was inside their home. He questioned the couple extensi vely and demanded information a bout money that they might keep in the house. He also l ooked through Fisher’s work email – apparently not finding the information for which he search ed. Appellant forced the victim s to move from room to room throughout the invasion, and he clo sed window blinds in the hou se. Appellant shot and stabbed Duncan, he tasered and stabbed F isher, and he then kicked the a lready gravely wounded Fisher in the head as he left, telli ng him, “You’re going to die.” Ev idence showed that appellant attempted to cover up his crimes by recovering the Taser cartri dges and gun shell casings and that he doused the foyer rug with ga soline before leaving the h ome. Appellant used a prepaid phone during the events rather t han his personal cell phone, re moved his bloody clothing prior to arrest, and soaked the clothing i n ammonia as he and his wife f led from the polic e. Fisher later described appellant’s demeanor dur ing the events as “very force ful, authoritative. Very much in control.” In addition, testimony f rom arresting officers showe d that appellant was alert when he was first apprehended – and that any change in his level of con sciousness took place after he was placed into the police vehicle. Any possible error in not admi tting expert evidence of his mental- 23 - state at the time of the offenses is simply insignificant in co mparison with the overwhelming evidence of appellant’s lucidi ty both before a nd during the eve nts in question. 12 In assignment of error IX, appella nt argues that the trial cour t erred by limiting appellant’s presentation of evi dence in support of his proffere d defenses of involuntary intoxication and unconsciousness. T he trial court redacted med ical records, limited appellant’s expert testimony to a discussi on of toxicology rather than psyc hiatry, and would not allow appellant’s expert to use certai n words like “delirium,” “psych osis,” “dissociation,” and “delusions.” Because appellant refused to plead insanity, the trial court did not err in preventing appellant from presenting expert testimony about his mental sta te. In addition, the trial court has broad discretion in deciding what ev idence is relevant and shou ld be admitted at trial. Therefore, we cannot find that it was an a buse of discretion for the trial court to limit the use of certain words and to redact medical records because the trial court did so to prevent appellant from presenting expert evidence of his mental state without first ma king an insanity defense, as required by statute and by the S upreme Court’s holding in Stamp er. Furthermore, even assuming without deciding that it was error to exclude any such evidence related to appellant’s unconsciousness defense, any error was harmless for the reasons we have stated above. E. Jury Instructions on Uncons ciousness and Intoxication “The purpose of any jury instruct ion is to inform the jury of t he law guiding their deliberations and verdict.” Morgan, 50 Va. App. at 132, 646 S. E.2d at 905 (quoting Keen v.

12 Even if appellant, as he claims, was actually wearing two fentanyl patches at the time of the home invasion that he committed here, these two fentanyl patches were twice his prescribed dosage. The Supreme Court has stated, “Where not se lf-induced, unconsciousness is a complete defense to a crimi nal homicide.” Riley, 277 Va. at 479, 675 S.E.2d at 175 (quoting Greenfield, 214 Va. at 714, 204 S.E .2d at 417). However, giventhe extraordinary amount of fentanyl that appellant claims was on him at the time of the of fenses (and the fact that the amount far exceeded his prescribed dosage), the defense of unconscious ness would simply not be available to appellant, even i f he had been unconscious (which the evidence shows he was not), because any supposed unconsciousness would have been self-induc ed.- 24 - Commonwealth, 24 Va. App. 795, 807, 485 S.E.2d 659, 665 (1997)) . “The trial judge has broad discretion in giving or denying instructions requested.” Id. a t 132-33, 646 S.E.2d at 905 (quoting Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 7 78 (2003) ( en banc )). “A reviewing court’s responsibil ity in reviewing jury instructions is ‘to see that the law has been clearly stated and that the instructions cove r all issues which the evidence fairl y raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988 ) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). “[I]n deciding whether a particular instruction is appropriate, we vi ew the facts in the light most favorable to the proponent of the instruction.” Cooper v. C ommonwealth, 277 Va. 377, 381, 673 S. E.2d 185, 187 (2009). However, “[n]o instruction shoul d be given that ‘incorrectly st ates the applicable law or which would be confusing or misleading t o the jury.’” Morgan, 50 Va. App. at 133, 646 S.E.2d at 905 (quoting Mouberry v. Co mmonwealth, 39 Va. App. 576, 582, 575 S. E.2d 567, 569 (2003)). “If the principles set forth in a proposed instruction are fully an d fairly covered in ot her instructions that have been granted, a trial co urt does not abuse its discre tion in refusing to grant a repetitious instruction.” Joseph v. Commonwealth, 249 Va. 78, 90, 452 S.E. 2d 862, 870 (1995). In his last two assignments of e rror (assignments of error XI a nd XII), appellant claims that the trial court erred by de nying his requested jury instru ction that defined and described “unconsciousness” and his jury in struction that defined “intoxi cation.” Appellant’s proposed instruction on unconsciousness stated: Unconsciousness refers to a sta te where a subject physically ac ts in fact but is not, at the time, c onscious of acting. Unconscious ness does not reach the physical dimens ions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on) in order to repre sent a legal defense. If y ou find that Mr. Schmuhl was physica lly acting but not conscious of his acts at the time of the offense, you must find him not guilty.- 25 - Appellant argues that his defe nse of unconsciousness was not ad equately addressed by the instruction that the court ga ve on involuntary intoxication, an d he claims that he offered more than a “scintilla of evidence” to justify a separate unconsciou sness instruction. See Gibson v. Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975) (sta ting that jury instructions “must be supported by more than a m ere scintilla of evidence”). However, appellant’s request ed instruction on unconsciousness w as an inaccurate statement of the law. For exa mple, it did not indicate that un consciousness cannot be self-induced by voluntarily taki ng drugs or medication. See Ri ley, 277 Va. at 479, 675 S.E.2d at 175. The instruction also failed t o state that unconsciousness is caused by “some voluntary or involuntary agency rendering [pe rsons] unaware of their acts.” Id. Therefore, the trial court did not err in refusing appellant’s requested jury instruction on u nconsciousness because it was inaccurate. Finally, appellant contends that the trial court erred when it refused his instruction that stated, “Legal intoxication mean s a disturbance of mental or ph ysical capacities resulting from the introduction of substances i nto the body.” The Supreme Court has held that “[t]he phrase ‘under the influence of intoxican ts’ is composed of words of or dinary significance and their meaning is well known to the avera ge juror, but in the absence of statute the phrase is not susceptible of a definite, accurate definition acceptable to al l.” Gardner v. Commonwealth, 195 Va. 945, 953, 81 S.E.2d 614, 619 (1954). There is neither a mo del jury instruction nor a statute defining the word “intoxication” in the Commonwealth. Therefor e, we cannot say that the trial court abused its discretion in ref using to give an instruction on the definition of “intoxication” and in instead permitting the parties to argue the meaning of “ intoxication” before the jury.- 26 - III. C ONCLUSION In short, the trial court did not err in excluding the evidence of appellant’s mental state pursuant to his involuntary int oxication defense or in circumsc ribing the manner in which appellant presented his eviden ce of the effects of the drugs he took. The Commonwealth’s common law history as a M’Naghte n jurisdiction and the Supreme Court’s holding in Stamper prevent evidence of a defendant’s mental state from being offer ed to negate mens rea for an involuntary intoxication defens e, unless the defendant properlynotifies the Court, as required by statute, that his involuntar y intoxication caused him to cross the legal threshold to insanity at the time he committed the offense. Furthermore, it was not error f or the trial court to find that appellant was actually offering a n insanity defense, despite no t following the required statutory procedures for doing so under Code §§ 19.2-168, 19.2-168.1, and 19.2-169.5 and despite appellant’s protests to the contrary, when appellant intended t o rely on expert evidence to show his mental state at the time he committed the charged offenses. In addition, assuming without deciding that it was error to e xclude appellant’s evidence of h is mental state for his unconsciousness defense, any error was harmless given the overw helming evidence of appellant’s guilt and the overwhelming evidence that he was not unconscious when he committed these offenses. It was not error to exclude appellan t’s proposed jury instruction on “unconsciousness” because the instruction on unconsciousness wa s an inaccurate statement of the law. Finally, the trial c ourt did not abuse its discretionin excluding appellant’s proposed jury instruction on the word “intoxi cation” (and in simply allowing both counsel to argue the meaning of the word before the jury) beca use “intoxication” is a word o f common usage and there is neither a model jury instructi on nor a statute defining the ter m. For all of these reasons, we affi rm appellant’s convictions for two counts of abduction with intent to gain pecuniary be nefit, two counts of aggravated malicious wounding, two counts- 27 - of using or displaying a firearm during the commission of an ag gravated malicious wounding, and burglary while armed with a deadly weapon. Affirmed.