COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Se nior Judges Willis and Annunziata Argued by teleconference

DEBORAH KAY STOUT MEMORANDUM OPINION * BY v. Record No. 1652-06-4 CHIEF JUDGE WALTER S. FELTON, JR. JANUARY 29, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CLARKE COUNTY John R. Prosser, Judge David L. Hensley (E. Eugene Gunter; Law Office of E. Eugene Gunter, on briefs), for appellant. Craig W. Stallard, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Following a jury trial, Deborah Kay Stout (“appellant”) was convicted of first-degree murder of Frank Owens and conspiracy to comm it that offense, use of a firearm in the commission of that murder, attempted malicious wounding of Owens, and conspiracy to commit that offense. On appeal, she contends the tr ial court erred in admitting the Commonwealth’s gunshot residue evidence and that “such eviden ce did not comport with the other evidence offered by the Commonwealth.” Sh e also contends the trial court erred in rejecting her proffered jury instruction relating to the mens rea requirement for a principal in the second degree.
I. BACKGROUND Because the parties below are c onversant with the record in this case, and this opinion carries no precedential value, we cite only those facts necessary for the disposition of the appeal. “On appeal, we review the evidence in the light most favorable to th e Commonwealth, granting

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). We must also “‘ discard the evidence of the accused in conflict with that of the Commonwea lth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.’” Craddock v. Commonwealth , 40 Va. App. 539, 542-43, 580 S.E.2d 454, 456 (2003) (quoting Holsapple v. Commonwealth , 39 Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003)). So viewed, the evidence established that on July 12, 2004, appell ant, then forty-one years old, asked her twenty-three-year-old tenant, David Grizzel, with whom she had recently begun a sexual relationship that involved cocaine use, to kill Owens. Appellant and Owens were in an on-again, off-again romantic relationship. At her direction, Grizzel previ ously had disabled the brakes on Owens’ truck. Owens was not injured when his brakes failed. Grizzel agreed to kill Owens, and that same afternoon he purchased a .32 caliber pistol with money given to him by appellant for that purpose. Immediately after Grizzel bought the gun, he showed it to appellant, who briefly held it. 1 Earl Warren, appellant’s long-time friend and te nant, who had previously assisted Grizzel in disabling Owens’ brakes, drove Grizzel to Owen s’ house that night so that Grizzel could kill him. Consistent with their plan to kill Owe ns, appellant preceded Griz zel and Warren to Owens’ house, and was in the bedroom when Grizzel rang the front door bell. 2 Owens answered the door, and Grizzel shot him with the recently pur chased pistol and stabbed him multiple times with a knife. When they were certain Owens was dead, appellant told Grizzel to leave and that

1 The Commonwealth contended that appell ant acquired gunshot residue on her hand at this time.

2 According to the plan he formed with appellant, if Owens came to the door Grizzel was to kill him, but if appellant came to the door, he was to leave w ithout killing Owens.- 3 - she would “take care of it from [t]here.” Grizzel and Warren then left Owens’ house and disposed of the gun and the knife, neither of which was recovered by police. After Grizzel murdered Owens and departed with Warren, appellant left Owens’ house and proceeded to a neighboring house, where Owens’ neighbors called 911. A gunshot residue test performed later that night revealed a micr oscopic particle of gunshot residue on appellant’s hand. Appellant denied she was involved in disabl ing the brakes on Owens’ truck or in his murder, but admitted being in Owens’ home when Gr izzel killed him. She testified that she heard gunfire, grabbed a puppy she had with her, went out the slidi ng glass door connecting Owens’ bedroom to his back porch, jumped from the porch to the ground, some eleven feet below to a sharply inclined slope, holding he r purse and the puppy, and then made her way through the woods to the neighbor’s house. After Owens’ funeral, appellant, Grizzel, and Wa rren traveled together to Florida. Some months later, Warren informed police that Grizze l disabled Owens’ brakes and later murdered him, admitting that he drove Grizzel to the scen e on each occasion. Prior to appellant’s trial, Grizzel pled guilty to the attempted murder of Owens by disabling the brakes on his truck, and to his first-degree murder. Both Grizzel and Warre n testified for the Commonwealth at appellant’s trial. Appellant sought to exclude evidence of th e gunshot residue discovered on her hand on the night Grizzel murdered Owens. She argued that evidence was not relevant to prove she shot Owens because the Commonwealth asserted that Grizzel shot Owens. She also argued that admitting the gunshot residue evidence would mislead the jury into believing she fired a gun the day Owens was murdered. The trial court ad mitted the gunshot residue evidence, finding it- 4 - relevant to corroborate Grizzel’ s testimony that appellant held the gun they purchased to kill Owens hours before he was shot. After the presentation of evidence, appellant proffered a jury instruction that told the jury that in order for it to find appellant was an “aid er and abettor” to Grizzel’s shooting of Owens, it must find that she “shared in the criminal intent of the principal.” The trial court rejected appellant’s proffered instruction, ruling that the applicable law th erein governing principals in the second degree was “covered by other instructions of the Court.”
II. ANALYSIS A. Admissibility of the Gunshot Residue Evidence “‘The admissibility of evidence is within th e broad discretion of th e trial court, and a ruling will not be disturbed on appeal in th e absence of an abus e of discretion.’” Summerlin v. Commonwealth , 37 Va. App. 288, 293, 557 S.E.2d 731, 734 (2002) (quoting Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). Evidence is relevant when it has a “logical tenden cy, however slight, to prove a fact at issue in the case.” Winston v. Commonwealth , 268 Va. 564, 596, 604 S.E.2d 21, 39 (2004). Throughout the trial the Commonwealth conten ded that Grizzel shot Owens and that appellant was an accomplice to Owens’ murder, eith er as an accessory before the fact or a principal in the second degree, no t a principal in the first degree. 3

3 In a felony case, [a] principal in the first degree is the actual perpetrator of the crime. A principal in the second de gree, or an aider or abettor as he is sometimes termed, is one who is present, actually or constructively, assisting the perp etrator in the commission of the crime. In order to make a pers on a principal in the second degree actual participation in the co mmission of the crime is not necessary. The test is whether or not he was encouraging, inciting, or in some manner offering aid in the commission of the crime. If he was present lending countenan ce, or otherwise aiding while- 5 - Here, the presence of gunshot residue on appe llant’s hand tended to prove appellant had some contact with a gun on the day of the murder . That evidence was relevant to impeach appellant’s testimony that she did not come in contact with a gun on the day of the murder, and to corroborate Grizzel’s testimony that appellant held the .32 ca liber pistol they purchased with money that appellant provided on th e day of the murder in furthera nce of their plan to murder Owens that evening. Moreover, impeachment of appellant’s statement th at she had no contact with a gun on the day of Owens’ murder bolster ed the credibility of Grizzel, who stood impeached by his confessed complicity in Owens’ murder. See Largin v. Commonwealth , 215 Va. 318, 319, 208 S.E.2d 775, 776 (1974). Appellant contends that th e gunshot residue evidence, ev en if relevant, was more prejudicial than probative, as its admissibility misled the jury to believe she fired a gun on the day Owens was murdered. The record does not support appellant’s contention, however. The Commonwealth’s evidence throughout the trial consistently pr oved that Grizzel, and not appellant, fired the gun that killed Owens. 4 We cannot find, based on this record, that th e trial court’s decision to admit evidence that appellant had gunshot residue on her hand, shortly after Owens was murdered, was an abuse of discretion.

another did the act, he is an aide r and abettor or principal in the second degree. Jones v. Commonwealth , 208 Va. 370, 372-73, 157 S.E.2d 907, 909 (1967).

4 Appellant also argues the gunshot residue evidence caused the ju ry to erroneously determine the testimony given by Grizzel and Warre n was more credible than her testimony, in which she denied any involvement in the murder of Owens. Pursuant to Code § 17.1-407(D), a three-judge panel of this Cour t previously denied appellant’ s question presented on that ground, and we do not consider it here.- 6 - B. Jury Instruction “The trial judge has broad discretion in giving or denying instructions requested.” Gaines v. Commonwealth , 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) ( en banc ). “A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly 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)). “‘When granted instructions fully and fairly cover a principle of law, a tria l court does not abuse its discreti on in refusing another instruction relating to the same legal principle.’” Gaines , 39 Va. App. at 568, 574 S.E.2d at 778 (quoting Stockton v. Commonwealth , 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984)); Hubbard v. Commonwealth , 243 Va. 1, 16, 413 S.E.2d 875, 883 (1992). Appellant argues the trial court erred in not granting her proffered instruction that to find her to be a principal in the second degree, the jury must find that sh e shared the criminal intent of the principal in the first degree. She argue s that because the Supreme Court approved the proffered instruction in Rasnake v. Commonwealth , 135 Va. 677, 115 S.E. 543 (1923), a case which she asserts has “not been overruled or modi fied or distinguished,” the trial court erred by not granting that identical in struction here. We find no me rit in appellant’s argument. 5 Here, Instruction 12, granted by th e trial court, told the jury that in order for it to find appellant guilty as a principal in the second degree, it must find that she “intended her words, gestures, signals, or actions to in some way enc ourage, advise, or urge or in some way help the person committing the crime to commit it” and that a principal in the second degree is liable for the same punishment as the person who actually committed the crime. Instruction 13 instructed

5 We note that the Supreme Court, in Rasnake , affirmed the use of the instruction proffered by appellant as read to gether with the other instructi ons, and in light of the evidence presented in that case. Rasnake , 135 Va. at 708, 115 S.E. at 553.- 7 - the jury that “[a] person is considered present at the scene of the crime if he was in a place to render assistance in the commission of the crime. ” Instruction 15 told the jury that “[a]n accessory before the fact is one who was not present at the time of the commission of the crime[,] but who[,] before th e commission of the crime in some way planned, advised, or assisted in the commission of the crime[,] knowing or having reason to know of the intent of the princip[al] to commit the crime” and that “[a]n accessory before the fact is liable for the same punishment as the person who actually committed the crime.” Instruction 31, granted at appe llant’s request, instructed the jury that if it found from the evidence that Grizzel alone killed Owens, that appe llant could not be convicted of the murder if appellant was at the scene and di d not conspire, aid or abet in the killing. Instru ction 32, also granted at appellant’s request, told the jury that the mere presence of appellant at the time of the murder of Owens was not alone su fficient to justify a conviction. When granted instructions fully and fairly c over a principle of law, a trial court does not abuse its discretion in refusing another instruction relating to the same legal principle. Gaines , 39 Va. App. at 568, 574 S.E.2d at 778. Here, the instru ctions granted to the jury fully and fairly covered the principles of law relevant to the question of whether appellant aided and abetted Grizzel in the murder of Owens. Accordingly, we conclude from our review of the record, considering the evidence and othe r instructions granted, that the trial court did not abuse its discretion in refusing to grant ap pellant’s proffered instruction.- 8 - III. CONCLUSION For the foregoing reasons, we affirm appellant ’s convictions. We conclude the trial court did not err in admitting evidence of gunshot re sidue on appellant’s hand on the night of the murder and that it did not err in refusing to grant appellant’s proffere d jury instruction. Affirmed.