COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Malveau x and Senior Judge Annunziata Argued at Alexandria, Virginia

THOMAS ROBERT LIENAU OPINION BY v. Record No . 0685-17-4 JUDGE W ILLIAM G. PETTY SEPTEMBER 11, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Penney S. Azcarate, Judge Peter D. Greenspun (Anastasia T. Kranias; Greenspun Shapiro P C, on briefs), for appellant. Katherine Quinlan Adelfio, Assistant Attorney General (Mark R

. Herring, Attorney General, on briefs), for appellee.

Thomas Robert Lienau heard an intruder in his home at night an d armed himself. When he encountered the intruder, L ienau fired one shot and killed h im. A jury convicted Lienau of involuntary manslaughter. 1 Lienau argues on appeal that th e trial court erred in refusin g to give the jury an instruction on self- defense. We agree. Accordingl y, we reverse and remand.
I. B ACKGROUND Usually, this Court “review[s] t he evidence in the light most favorable to the Commonwealth, the prev ailing party in the tri al court.” Dawsonv. Commonwealth, 63 Va. App. 429, 431, 758 S.E.2d 94, 95 (2014). However, “[w]hen reviewing a trial court’s refusal to give a proffered jury instruction, we vi ew the evidence in the light m ost favorable to the proponent of

1 Lienau was originally indicted f or murder. The jury acquitted him of that charge and convicted him of the lesser-incl uded offense of involuntary man slaughter.PUBLISHED- 2 - the instruction.” Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). We must therefore view the evidence in the light most favorable to Lienau. 2
Thomas Robert Lienau owned a s mall townhouse, where he resided in the basement. Near his bed, he kept a lever-ac tion rifle that he had received for his twelfth birthday. He kept the rifle unloaded, but attached two bullets to the rifle stock with an elastic band. He later explained to investigators that he kept the rifle near his bed “for self-defense, for anyone who breaks in.” The main floor of t he home had the living areas, a nd the second floor contained bedrooms, one of which he rente d to J.R. Najim. J.R. owned a g un, which he sometimes kept in his second-floor room. Lienau di d not permit J.R.’s brother, M ohammed Najim, in the house because, as Lienau described him, he was “out of control,” “wac ked out,” “always wasted,” and “always in trouble.” Neverth eless, Lienau had once found Moham med asleep on the living room couch without permission. Lienau “kicked him out” and warned J .R. that Mohammed was not to be in the house. On another oc casion, Mohammed entered the hom e without permission and came down the stairs to Lienau’ s living area in the basement. This “scared [Lienau] to death.”

2 It is this standard of review that constitutes our foundationa l disagreement with the dissent. Lienau did not testify durin g the guilt phase of the trial. The majority of the facts surrounding the actual shooting com e from statements Lienau mad e to the police soon after the shooting and during a recorded two -hour interview at the police station. The dissent has searched these interviews for statements by Lienau that, when v iewed in a light most favorable to the Commonwealth, would support a jury’s rejection of his self- defense claim. However, as we note below, that is not our tas k in reviewing this appeal. We must review the facts, and the reasonable inferences that might be drawn from those facts, loo king for evidence that would support Lienau’s requested instr uction. For instance, while th e dissent views his statement to the police “No, No, [the threat] happe ned earlier” to conclude ther e was no imminent threat at the time of the shooting, infra 19, we consider that statement of a previous threat in conjunc tion with the nighttime home invasion as evidence that would support a re asonable apprehension of bodily harm. Thus, while we have no quarr el with the dissent as to th e law of self-defense, we believe that the facts, when viewed thr ought the appropriate prism, are sufficient to warrant allowing the jury, and not the trial judge or t his Court, to determine wheth er Lienau acted in self-defense.- 3 - He told Mohammad, “Don’t you ever come in this house again. Yo u’re not invited here; I’ve told you that before. Get out!” On the evening of July 16, 2015, Lienau received a phone call from J.R. asking him to come to J.R.’s second-floor room to mediate a fight between J.R . and Mohammed, who, unbeknownst to Lienau, had come to visit J.R. J.R. and Mohamme d continued yelling and threatening to kill each other, so Lienau told them to leave th e house. Lienau believed Mohammed was high on drugs at the time. 3 After J.R. and Mohammed left the house at about 5:50 p.m., Lienau locked the fr ont door. About a half an hour later, Mohammed returned and began to pound on Lienau’s front do or and to kick it with his b are feet. Mohammed was causing a disturbance in the neighborhood, and a neighbor sent Lienau atext message that Mohammed was pounding the door and incessant ly ringing the doorbell, rea lly upset because the door was locked. Lienau sent a text messa ge to J.R. saying that he need ed to come get Mohammed. Finally, the pounding stopped, and L ienau believed Mohammed had left. Shortly before 10:00 p.m., Lienau was home alone in his baseme nt when he heard a loud bang and footsteps on the main f loor. He carried the unloaded rifle up the basement stairs to investigate. Although he had full y locked the deadbolt earlier , he now saw the door open. An intruder had burst into the home with so much force that pieces of door trim and door frame lay in the living room with the met al deadbolt strike plate still a ttached. Lienau took the two bullets from the elastic band, loaded one in the rifle, and put the oth er in his pocket. Although Lienau had not yet seen the intruder, he s trongly suspected the intrud er was Mohammed. With his now-loaded rifle, Lienau approached the stairwell to the second floor. Lienau saw Mohammed come from the s econd floor to the top of the stair s. Lienau aimed the rifle at

3 The medical examiner testifie d at trial that Mohammed had used cocaine the day he died.- 4 - Mohammed’s legs, wanting to sca re him. Lienau was shaking badl y and, although he said he did not intend to pull the trigger, the rifle di scharged. The bull et travelled upward through Mohammed’s left calf and through h is right thigh, ending in the stair tread of t he top step, below the level of the second floor. A lthough Lienau rendered first aid, Mohammed died shortly thereafter from his wound. Both immediately after the s hooting and in a statement he gave police at the police station, Lienau maintained that he never intended to pull the trigger. He said it happened “unfortunately too fast” “and [he ] wasn’t thinking.” He explai ned that he “didn’t think about it that deeply” at the time but w as “try[ing] to piece some of it” together during the interview. He said, “With an intruder and t he door broken in . . . I just saw red.” He said he was in a “rage” and shaking so much he would not have been able to hit a target if he had been aiming. He admitted that he was upset at Mohammed’s actions earlier that e vening, especially after he had already kicked him out. He said, “I let my temper, my emotions , get the better of me.” The Commonwealth charged Lienau with murder. At the conclusio n of the trial, Lienau moved to strike the evidence on t he basis that the Commonwealthhad failed to prove the shooting was not an accident. The trial court denied the motio n. Lienau then requested a jury instruction on the law of self-de fense, arguing that Lienau was in a “frighteni ng and self-defense situation.” The trial court refu sed the instruct ion. The jury found Lienau guilty of involuntary manslaughter. During sentencing, the trial court sustained the Commonwealth’s objection to certain evidence and cross-exam ination by Lienau. This appeal followed.- 5 - II. A NALYSIS A. T HE T RIAL C OURT E RRED IN R EFUSING THE S ELF -D EFENSE I NSTRUCTION 1. Standard of Review This Court’s standard of review where the trial court refuses a jury instruction is well-established. “As a general rule, the matter of granting a nd denying instructions . . . rest[s] in the sound discretion of the tr ial court.” King v. Commonwea lth, 64 Va. App. 580, 586, 770 S.E.2d 214, 217 (2015) ( en banc ) (alterations in original) (quoting Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009)). “The trial cour t’s ‘broad discre tion in giving or denying instructions requested’ is reviewed for an abuse of dis cretion.” Id. (quoting Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) ( en banc )). However, “if there is evidence in the record to support the de fendant’s theory of defense, the trial judge may not refuse to grant a proper, proffered instruction .” Id. at 587, 770 S.E.2d at 218 (quoting Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991)). “If a proffered instruction finds any s upport in credible evidence, . . . its refusal is reversible error.” Id. (quoting McClung v. Co mmonwealth, 215 Va. 654, 657, 212 S.E .2d 290, 293 (1975)). “Additionally, ‘[w]here the conf licting evidence tends to susta in either the prosecution’s or defense’s theory of the case, the trial judge must instruct the jury as to both theories.’” Id. (alteration in orig inal) (quoting Foster, 13 Va. App. at 383, 4 12 S.E.2d at 200). The theory, however, must find support in the evidence. “A defendant is en titled to have the jury instructed only on those theories of the case that are supported by [more than a scintilla of] evidence.” Id. (alteration in orig inal) (quoting Eaton v. C ommonwealth, 240 Va . 236, 255, 397 S.E.2d 385, 397 (1990)). “‘The weight of the cred ible evidence that will amoun t to more than a mere scintilla . . . is a matter to be resolved on a case-by-case basis’ by assessin g the evidence in support of a- 6 - proposition against the ‘other credible evidence that negates’ it.” Id. (omission in original) (quoting Woolridge v. Commonwealth, 29 Va. App. 339, 348, 512 S .E.2d 153, 158 (1999)). 2. The Law of Self-Defense A person’s right to defend hims elf in his own home has strong r oots in this Commonwealth. In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds o f defense: and so the dwelling hous e was called the castle. To this condition of things, the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like—cases not within th e line of our present exposition. From this doctrine is derived another: namely, that the pers ons within the house may exercis e all needful force to keep aggr essors out, even to the taking of life. Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867 (1 922) (distinguishing between an invited guest and one that en ters forcefully) (quoting 1 Bis h. New Cr. Law § 857, 858 (3th ed.)), cited with approval i n Hines v. Commonwealth, 292 Va. 67 4, 679-80, 791 S.E.2d 563, 565 (2016). The Supreme Court has recognize d that “[a] defendant may alway s act upon reasonable appearance of danger, and wheth er the danger is reasonably appa rent is always to be determined from the viewpoint of the defendant at the time he acted.” McG hee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). “In the context of a sel f-defense plea, ‘imminent danger’ is defined as ‘an immediate, r eal threat to one’s safety . . . .’” Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001) (omission in original) (qu oting Black’s Law Dictionary 399 (7th ed. 1999)). “There must be . . . some act menacing pr esent peril . . . [and] the act . . . must be of such a character as to afford a reasonable ground fo r believing there is a design . . . to do some serious bodily harm, and imminent danger of carrying su ch design into immediate execution.” Id. (alterations i n original) (quoting Byrd v. Com monwealth, 89 Va. 536, 539, 16- 7 - S.E. 727, 729 (1893)). “The ‘bare fear’ of serious bodily inju ry, or even death, however well-grounded, will not justify the taking of human life.” Id. “There must [also] be some overt act indicative of imminent dange r at the time.” Id. (alteratio n in original) ( quoting Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E. 775, 776 (1935)). “Th e requirement of an overt act indicative of imminent danger ensu res that the most extreme rec ourse, the killing of another human being, will be used only in s ituations of necessity.” Id . at 731, 553 S.E.2d at 737. “Whether the danger is reasonabl y apparent is judged from the viewpoint of the defendant at the time of the incident.” Hines, 292 Va. at 679, 791 S.E.2d at 565. “Justifiable homicide in self-defense occurs where a person, without any fau lt on his part in provoking or bringing on the difficulty, kills another under reasonable appr ehension of death or great bodily harm to himself.” Yarborough v. Commonwealth, 217 Va. 971, 975 , 234 S.E.2d 286, 290 (1977) (quoting Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958)). Furthermore, “when a party assaults a homeowner in his own home, as in this case, the homeowner has the right to use whatever force necessary to repel the aggressor.” Hines, 292 Va. at 679, 791 S.E.2d
at 565. Accordingly, the model jury ins truction for self-defense, which is the instruction requested by Lienau, instructs jurors, If you believe that the defendantwas without fault in provokin g or bringing on the difficulty, a nd you further believe that: (1) he reasonably feared, under the circumstances as they appeared to him, that he was i n imminent danger of being killed or that he was in imminent da nger of great bodily harm; and (2) he used no more force, under the circumstances as they appeared to him, than was reas onably necessary to protect himse lf- 8 - from the perceived harm, then the killing was in self-defense, and you shall find the defendant not guilty. Model Jury Instrs.—Crim. No. 33.800. 4 3. The Trial Court Erred in Not Giving the Instruction In applying the legal principles of self-defense, we recognize that the issue before this Court is not whether Lienau acted in self-defense. That is for the jury alone to decide. Rather, the issue before us is whether there was sufficient credible ev idence in the record, viewed in the light most favorable to Lienau, to support the defendant’s righ t to have the jury instructed on these principles. See King, 64 Va. App. at 587, 770 S.E.2d at 218. We conclude there was. Here, from Lienau’s viewpoint , Mohammed’s overt act of breakin g into Lienau’s home in the dark of night could be vi ewed by a jury as “indicative o f imminent danger at the time.” Sands, 262 Va. at 729, 553 S.E.2d at 736. The act appeared eve n more menacing, from Lienau’s viewpoint, because Mohammed broke in with such force that he se verely damaged the dead-bolted front door. The viol ence of the break-in “afford[e d] [Lienau] a reasonable ground for believing there [was] a de sign [by Mohammed] to do some ser ious bodily harm, and imminent danger of [his] carryi ng such design into immediate ex ecution.” Id. Lienau’s response of loading one bullet in to the rifle he kept for self-defense w as credible evidence that he “reasonably feared death or seri ous bodily harm at the hands of his victim.” See Hines, 292 Va. at 679, 791 S.E.2d at 565. Within seconds of seeing Mohammed, who had earlier threatened to kill Lienau’s tenant, Lienau pulled the trigger. This evidence of Mohammed’s overt act of breaking through the door, Lienau’ s immediate response of loadi ng the rifle he kept for self-defense, followed immedia tely by his confronting of the in truder constituted “more than a

4 The Commonwealth does not suggest that the inst ruction Lienau requested was an incorrect statement of the law or that it was duplicative of th e other instructions.- 9 - mere scintilla” of credible evid ence that Lienau had a “reasona ble apprehension of death or great bodily harm to himself.” 5 Yarborough, 217 Va. at 975, 234 S.E .2d at 290 (quoting Bailey , 200 Va. at 96, 104 S.E.2d at 31); see Dodson v. Commonwealth, 159 V a. 976, 167 S.E. 260 (1933). This does not mean that the jury would find Lienau had a reas onable apprehension of harm or that the amount of force he used was reasonable. It does mean, however, that Lienau was entitled to have a self-defe nse instruction given to the ju rors to guide them in their deliberations. It was for the jury to determine, based on all the evidence, whether Lienau committed an unlawful homicide or a homicide justified by self- defense. The Commonwealth argues that t he instruction was not warranted because Lienau never claimed he was afraid; he said he was “raging.” Lienau stated to the police that “with an intruder and the door broken in,” before he knew who the intruder was, h e “just saw red.” He explained he “let [his] temper, [his] emo tions get the better of [him].” When asked what he felt at the moment of confrontation, he respond ed, “Rage.” However, it was for the jury to determine how

5 The dissent concludes that Lienau’s statements describing the incident “unequivocally negate the finding that he percei ved an imminent threat at thattime.” However, Lienau did not testify and therefore gave no statements under oath. See Bolya rd v. Commonwealth, 11 Va. App. 274, 277, 397 S.E.2d 894, 896 (1990) (affirming trial court’s refusal to give an accidental homicide instruction where defendant testified “he d eliberately shot the victim”); see also Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 ( 1922) (“No litigant can successfully ask a court or jury to believe that he has not tol d the truth. His statements of fact and the necessary inferences t herefrom are binding upon him.”). Instead, Lienau’s account of the shooting came from hearsay sta tements he made to police while he was “distraught” and was trying to “piece together” the events that had occurred. Nothing prevented the jury from co ncluding Lienau’s statements to police were incomplete or inaccurate. For example, although Lienau stated during the int erview that he believed Mohammed was on the top step and fe ll down the stairs after he was shot, as the dissent notes, the jury could believe the crime scene detective’s testimony th at it was “highly, highly, extremely improbable” that Moh ammed was standing on the top ste p when shot. Additionally, although Lienau did not state to pol ice that Mohammed displayed a weapon, the evidence showed Lienau was aware the t enant kept a weapon on the second floor. In the light most favorable to Lienau, the jury c ould conclude Lienau was aware o f the possibility Mohammed had acquired that weapon. And, of cour se, the jury could conclude that the trauma, stress, and emotion of the event affect ed Lienau’s recollection.- 10 - the events reasonably appeared t o Lienau and what weight to giv e Lienau’s statements to police. Epps v. Commonwealth, 66 Va. App. 393, 403-04, 785 S.E.2d 792, 797 (2016) (“The credibility of the witnesses and the weight accorded the evidence are matte rs solely for the fact finder who has the opportunity to see and hear that evidence as it is pres ented.” (quoting Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)) . Although Lienau never used the word “fear” to describ e his reaction to finding the br oken door and, subsequently, the intruder, this does not preclude the jury from so finding. It was the factfinder’s job to determine what Lienau meant by “rage” and w hether he also acted in reason able fear of imminent danger. In summary, the jury did not have to credit Lienau’s statement s to police, nor his theories of defense. There was evidence to support the Commonwealth’s t heory that Lienau committed an unlawful homicide. However, c redible evidence also supporte d Lienau’s theory that he was reacting to a “frighten ing and self-defense situation.” “Where the conflicting evidence tends to sustain either the prosecution’ s or defense’s theory of the cas e, the trial judge must instruct the jury as to both theories. ” King, 64 Va. App. at 587, 770 S.E.2 d at 218. Accordingly, the trial court erred by refusing the reque sted self-defense instruction to guide the jury in its deliberations. 4. The Doctrine of Harmless Error 6 Concluding that the trial c ourt erred, however, does not end o ur analysis. “Code § 8.01-678 makes ‘harmless-error review required in allcases.’” Commonwealth v. White, 293 Va. 411, 420, 799 S.E.2d 494, 498 (2017) (quoting Commonwealth v. Swann, 290 Va. 194, 200, 776 S.E.2d 265, 269 (2015)). This Court will not reverse a tri al court for errors “that were harmless to the ultimate resu lt.” Carter v. Commonwealth, 293 Va. 537, 544, 800 S.E.2d 498,

6 Subsequent to oral argument, thi s Court asked the parties for supplemental briefing addressing whether an error by th e trial court in not giving th e proposed instruction would nonetheless be harmless in view of the jury’s involuntary mansl aughter conviction.- 11 - 502 (2017) (quoting Shifflett v. Commonwealth, 289 Va. 10, 12, 766 S.E.2d 906, 908 (2015)). It is “‘the duty of a reviewing cour t to consider the trial record as a whole and to ignore errors that are harmless’ lest they ‘retrea t from their responsibility, bec oming instead “impregnable citadels of technicality.”’” Wh ite, 293 Va. at 420, 799 S.E.2d at 498 ( quoting United States v. Hasting, 461 U.S. 499, 509 (1983)). Because we are reviewing the effect the error may have had on “the ultimate result,” we focus on L ienau’s conviction of involuntar y manslaughter, not on the charge of murder, for which he was initially charged but ultimately ac quitted. See Carter, 293 Va. at 544, 800 S.E.2d at 502. The test for determining if a non-constitutional error is harml ess is as follows: If, when all is said and done, the c onviction is sure that the error did not influence the jury, or ha d but slight effect, the verdi ct and the judgment should stand . . . . B ut if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error , it is impossible to conclude that substantial rights were not affected . . . . If so, or if one is left in grave doubt, the conviction cannot stand. 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 )). “Non-constitution al error is harmless if other evidence of guilt is so ‘overwhelming’ and the error so insigni ficant by comparison that we can conclude the error ‘failed to ha ve any “substantial influence” on the verdict.’” Bell v. Commonwealth, 47 Va. App. 126, 140 n.4, 622 S.E.2d 751, 757 n.4 (2005) (quoting United States v. Lane, 474 U.S. 438, 450 (1986)). “Thus, where the re viewing court is a ble to determine that the trial court’s error in f ailing to instruct the jury co uld not have affected the verdict, that error is harmless.” Turne r v. Commonwealth, 23 Va. App. 270, 2 76, 476 S.E.2d 504, 507 (1996). “By contrast, where it is i mpossible to determine fromthe verdict whether the jury would have necessarily rejected a[defense] on which it was notinstructed, error in refusing to instruct on that [defense] is not harmless.” Id.- 12 - The question before us, then, is wh ether we can conclude, in l ight of the jury’s acquittal of Lienau of murder and his c onviction of involuntary manslaugh ter, that the trial court’s failure to instruct the jury regarding s elf-defense “could not have aff ected [that] verdict.” Id. In other words, whether the law of self-defense could provide a legal ju stification for the offense of involuntary manslaughter. “Ordinarily the law of self

- defense is not applicable in a case of a killing resulting from an act which was accidental and un intentional, particularly whe re the facts of the case are not such as would make such law applicable.” Braxton v. Commonweal th, 195 Va. 275, 277-78, 77 S.E.2d 840, 841 (1953). The defense that a killing was accidental presents a different issue from a claim that a killing was done in self-defense . . . . I n making [a self-defense] plea a de fendant implicitly admits the killing was intentional and assu mes the burden of introducing evidence of justification or exc use that raises a reasonable do ubt in the minds of the jurors. McGhee, 219 Va. at 562, 248 S.E.2d at 810. For example, where an accidental discharge of a firearm occurs during negligent handling of a firearm, the law of self-defense is not applicable. However, where the facts of the case are such as would make such law applicable, “[h]omicide is excusable on the ground of accident if it appear s that the defendant was acting lawfully in self-defense and t he victim was shot by accident th rough the unintenti onal discharge of a gun.” 40 C.J.S. Homicide § 180 (2014) (quoting State v. G oodson, 440 S.E.2d 370, 372 (S.C. 1994)). As we have said, in proper cases the assaulted party has the ri ght to meet force with force; and if, i n a proper defense, death resul ts to the assailant, the killing may be excusable without a belief onthe part of the assaulted party that it was necessary for his own s afety. In such cases the defense is purposely made, but the killing is not purposely done. It is simply the result of the defense.- 13 - Valentine v. Commonwealth, 187 Va. 946, 954, 48 S.E.2d 264, 268 (1948) (quoting Runyan v. State, 57 Ind. 80 (1877)). Accused is entitled to an acquitt al where he was lawfully actin g in self-defense and the death of his assailant resulted from accid ent or misadventure, as where in falli ng he struck or overturned an ob ject and thereby received injuries resulting in his death, or where in a struggle over the possession of aweapon it was accidentally discharged. Id. at 953, 48 S.E.2d at 268 (quoting 40 C.J.S., Homicide § 112 c [current § 180] (1948)). Accordingly, “[t]he mere fact t hat the defendant did not, at t he time of the killing, believe such killing was necessary does not divest him of the right to set up self-defense if the killing was not intended by him, but was inc idental to his excusable de fense of himself when assaulted.” 7 Id. (quoting Wharton’s Cr im. Law Vol. 1, p. 851 (12th ed.)); Nebraska v. Drew, 344 N.W.2d 923, 926 (Neb. 1984) (“[S]elf-de fense is available to th e accused who accidentally kills his assailant while properly exe rting force to assure his own s afety.”); New Mexico v. Gallegos, 22 P.3d 689, 692 (N.M. Ct. App. 2001) (“Homicide is justifiable if the killer acted reasonably in self-defense.”). Thus, an accused would be “entitled to an acq uittal if the death of [victim] resulted from an accident or misadventure which occurred while the defendant was in the act of defending or preparing to defend hi mself against an unprovoked assault.” Farrow v. Commonwealth, 197 Va. 353, 363, 89 S.E.2d 312, 318 (1955). In arguing that any error has b een rendered harmless by the ve rdict, the Commonwealth correctly states that ordinaril y in making a self-defense plea, a “defendant implicitly admits the

7 The dissent only discusses self-d efense as it applies to an in tentional homicide and presumes, contrary to the jury’s verdict, that Lienau deliberat ely fired the rifle. Thus, the dissent considers that “the appellant’ s putative act of self-defense wa s not the loading of hi s rifle—it was the firing of the bullet th at struck Mohammed.” Infra 18. However, Farrow v. Commonwealth, 197 Va. 353, 363, 89 S.E.2d 312, 318 (1955) (emphasis added), m akes it clear that in the case of an accidental killing, which the jury found to have occurred he re, a defendant may claim self-defense if the killing occu rred “while the defendant was i n the act of defending or preparing to defend himself against an unprovoked assault.”- 14 - killing was intentional and assu mes the burden of introducing e vidence of justification or excuse that raises a reasonable doubt i n the minds of the jurors.” Sa nds, 262 Va. at 729, 553 S.E.2d at 736 (quoting McGhee, 219 Va. at 562, 248 S.E.2d at 810). Despi te this generalization, however, “the evidence and inferences deduc ible therefrom may be such at times as to justify the submission of whether or not the killing was in self-defense, a s well as whether or not it was accidental. In such case, if either inference may be reasonabl y drawn, accused is entitled to have both issues submitted to the ju ry.” Jones v. Commonwealth, 196 Va. 10, 15, 82 S.E.2d 482, 485 (1954). “Since there was evidence that the killing was in self -defense as well as accidental, the defendant was entitled to have both issues submitted to the jur y.” Farrow, 197 Va. at 363, 89 S.E.2d at 318; see also King, 64 Va. App. at 587, 770 S.E.2d at218 (“If a proffered instruction finds any support in credible evidence, . . . its refusal is re versible error.” (quoting McClung, 215 Va. at 657, 212 S.E.2d at 293). While the jury here was instructed on the defense of accident and the unintentional offense of involuntary manslaugh ter, it was not given the opportunity to determine if Lienau was acting lawfully in self-defense when the shooting occurred. Li enau was “entitled to an acquittal [if] he was lawfully acting in s elf-defense and the death of hi s assailant resulted from accident.” Valentine, 187 Va. at 953, 48 S .E.2d at 268. Again, we need no t conclude whether the evidence was sufficient to show Lienau was acting lawfully in self-defense . We conclude only that there was credible evidence in the r ecord that entitl ed Lienau to the jury instruction and that failure to give the instruction was not harmless because “portions of the evidence were in controversy, and . . . [the jury] could have found appellant not guilty [of invo luntary manslaughter] if properly instructed on justifiable self -defense.” Bell, 66 Va. App. at 489, 788 S.E.2d at 277. Accordingly, we cannot say that the error would not have affect ed the ultimate verdict.- 15 - B. L IENAU ’ S S UFFICIENCY A RGUMENT I S W ITHOUT M ERIT Lienau argues the trial court erred in denying his renewed mot ion to strike th e evidence on the basis that the “Commonweal th’s evidence did not prove be yond a reasonable doubt that [Mohammed’s] death was not acciden tal. Therefore, the evidence was insufficient to find Mr. Lienau guilty of involuntary m anslaughter.” Lienau specifi cally referenced in his argument to the trial court a model jur y instruction, which was later gi ven to the jury, which stated, “Where a defense is that the death of [Mohammed] was an accident, Thom as Lienau is not required to prove this fact. The burden is on the Commonwealth to prove be yond a reasonable doubt that the death was not accidental.” Our response to this argument i s simple; although the trial court declined to find that the Commonw ealth failed to meet its burde n, the jury did. The jury acquitted Lienau of murder and vol untary manslaughter, the two offenses requiring proof of an intentional killi ng, and convicted him instead of involuntary m anslaughter, which only requires proof of an accidental killing. S ee Noakes v. Commonwealth, 28 0 Va. 338, 345, 699 S.E.2d 284, 288 (2010) (“[The common law cri me of involuntary manslaug hter is] ‘the killing of one accidentally, contrary to the in tention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the imprope r performance of a lawful act. ’”). Thus, to the extent that Lienau argues that the evidence was in sufficient to prove the shooting was intentional, the jury agreed and convicted him of involuntary m anslaughter. Because the arg ument has been effectively rendered moot by the verdict, we re ject Lienau’s argument that the trial court erred in denying the motion to strike. 8

8 Lienau’s only sufficiency ar gument on appeal regards the suffi ciency of the evidence to prove the shooting was not an acc ident. He did not argue to th e trial court that the evidence was insufficient to prove Lienau’s ac tions were criminally negligen t, as required for a conviction of the lesser-included offense of i nvoluntary manslaughter. That sufficiency argument is not before us, and we do not consider it. See also Commonwealth v. Bass, 292 Va. 19, 32, 786 S.E.2d 165, 172 (2016) (“It is a venerable pr inciple of double jeopardy jur isprudence that the successful- 16 - C. E XCLUDED E VIDENCE AND C ROSS
- EXAMINATION D URING S ENTENCING Finally, in light of our decisi on, we need not address Lienau’ s last assignment of error. Lienau argues that the trial court erred in limiting his cross- examination of sente ncing witnesses and by excluding specific eviden ce during sentencing. He argue s that, as a result, his inability to adequately impeach the Commonwea lth’s witnesses led to a higher sentence. “Because the case will be remanded and the evidence well may be presented differe ntly upon a new trial, we will not give an advisory opinion regar ding whether [the] evidence . . . would be admissible if proffered again.” Commonwealth v. Cary, 271 Va. 87, 102, 623 S.E.2d 906, 914 (2006).
III. C ONCLUSION Virginia has long recognized the castle doctrine; a homeowner has the right to “meet force with force” when an intruder breaks into his or her home. Valentine, 187 Va. at 954, 48 S.E.2d at 268. If while lawfully pr eparing to defend himself i n his home, the homeowner accidentally kills the intruder, he still may be entitled to ac quittal on the grounds of self-defense. Id. “In such cases the defense is purposely made, but the kill ing is not purposely done. It is simply the result of the defense .” Id. It was the jury’s task to determine if this was such a case. Because there was credible evid ence to support Lienau’s theory of self-defense, the trial court erred in refusing the requested instruction. We therefore reve rse his conviction of involuntary manslaughter and remand for a new trial on that offense, if the Commonwealth is so inclined. Reversed and remanded.

appeal of a judgment of convict ion, on any ground other than th e insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge.” (quoting Montana v. Hall, 481 U.S. 400, 402 (1987))).- 17 - Malveaux, J., concurring, in pa rt, and dissenting, in part. I concur in the majority opinion t hat appellant’s sufficiency a rgument is without merit. However, I respectfully dissent from the majority holding that the trial court erred in refusing appellant’s proffered jury instr uction. While the law of self- defense in Virginia has a long and estimable history, the right to sel f-defense, as the majority a cknowledges, is not unbounded. Our case law still requires that f or a defendant justifiably to hav e exercised that right, and for a self-defense instruction to be gi ven, there must be evidence of “some overt act indicative of imminent danger at the time” th e defendant used force in self-d efense. Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001) (quoting Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E. 775, 776 (1935)). Further, that imminent da nger must be “reasonably apparent [as] judged from the vi ewpoint of the defendant at the time of the incident.” Hines v. Commonwealth, 292 Va. 674, 679, 791 S.E.2d 563, 565 (2016). The majority is correct in no ting that Mohammed broke and enter ed appellant’s home with force and that appellant l oaded his rifle upon seeing the signs of forced entry and suspecting that Mohammed was probably respo nsible. However, those develop ments preceded the fatal incident. After appellant loade d his rifle, he went to the foo t of the stairs to the second floor and called out “something like [‘ ]is that you, punk,[’] or . . . [‘ ]mother fucker.[’]” Mohammed then appeared at the top of the sta irs and replied, “I told you, man , I’m getting my shit.” 9 At that point, appellant had his rifle poi nted at Mohammed with the int ention of scaring him. However, the rifle discharged.

9 Appellant’s neighbor had encounter ed Mohammed earlier that eve ning, while Mohammed was pounding on appellant’s door. He testified that M ohammed was wearing shorts but no shirt or shoes. The neighbor sent a text message to app ellant that Mohammed “doesn’t have his shoes or stuff. He ju st wants to pick up his stuff no trouble and leave.” Appellant replied by text that Mohammed coul d return for his things the n ext day.- 18 - The majority concludes there wa s sufficient evidence to support giving a self-defense instruction, because Mohammed’s forceful breaking and entering of appellant’s home was evidence of an overt act indicativ e of an imminent danger to ap pellant. Further, there was evidence that this act produced i n appellant a reasonable appre hension of death or great bodily harm, because appellant responded to the signs of a break-in by loading his rifle f or self-defense. But appellant’s putat ive act of self-defens e was not the loadin g of his rifle—it was the firing of the bullet that struck Mohammed. T hat was the “incident” at th e time of which there must be more than a scintilla of eviden ce that appellant reasonably app rehended an imminent danger, based upon an overt act by Mohammed at that time, in order to j ustify a self-defense jury instruction and appellan t’s use of force. As evidence of what transpire d when appellant shot Mohammed, we have only appellant’s own statements and t he forensic material gathered a nd testified to by police. Appellant never stated that Moha mmed made threatening gestures or furtive movements during this encounter. He never stated t hat Mohammed displayed a weap on, or that Mohammed was moving toward him when he fired hi s rifle. The crime scene det ective who investigated the shooting testified that he coul d not say whether Mohammed was s tationary or in motion when he was shot. Appellant stated only tha t “[o]nce I shot [Mohammed] he fell down the stairs.” These facts must be viewed in the light most favorable to appellant, with cognizance that self-defense requires evidence of an overt act threatening imminent— i.e. , immediate—death or great bodily harm. Based upon the facts of t he shooting, I can find no scin tilla of evidence of an overt act by Mohammed that would justify givi ng a self-defense instruction. Further, when examining the enc ounter through appellant’s viewp oint, I can find no scintilla of evidence that an i mminent danger of death or great bodily harm was reasonably apparent to him when he fire d his rifle. Appellant’s own state ments to police make clear that he- 19 - did not perceive an immediate thr eat from Mohammed at that mome nt. When questioned by detectives, appellant did descri be the contentious argument bet ween J.R. and Mohammed and Mohammed’s behavior outside his front door that evening. He al so told the detectives about past encounters with Mohammed that scar ed or otherwise upset him, an d his belief that Mohammed was using drugs. However, the d etectives also questioned appel lant about the immediate circumstances at the time he s hot Mohammed. When asked, “Is th ere anything that [Mohammed] did, like other tha n just break the door and be in t he house? Was there . . . was there a threat? Was there an i mmediate threat at all from his --[,]” appellant interrupted to say, “No. No, that happened earlier.” The detectives responded to this statement by asking appellant, “So, in that moment in time --[ ,]” and appellant shook his head to indicate “no.” These statements to police, describing a ppellant’s view of what was a pparent to him at the time he shot Mohammed, unequivocally negate t he finding that he perceived animminent threat at that time. Our case law on self-defense is clear: it is the moment at whi ch a defendant resorts to force that we must look to for e vidence of an overt, threatenin g act and a reasonable fear of death or great bodily harm. Hines, r elied upon by the majority, illu strates this princ iple. In Hines, our Supreme Court concluded that th e defendant “exercised his right to defend himself, his family, and his home with appropriate force” when he shot and killed a man who had been drinking, was belligerent, and brandished agun in front of the defendant and his wife and sister. Hines, 292 Va. at 681, 791 S.E.2d at 566. The def endant had retreated to retrieve his own gun, and, when he returned to the victim’s pres ence, the victim pointed his gun a t the defendant. Id. At that point, the defendant, “fearing for hi s life, shot [the victim].” Id. The Court made clear that the moment at which the defendant used deadl y force was the dispositive mo ment for their imminent danger analysis, because while the defenda nt “was concerned for the sa fety of his family members, his fear of imminent death or bodily i njury from [the victim] arose when he returned to the room and- 20 - [the victim] pointed a gun at him.” 10 Id. at 680, 791 S.E.2d at 565-66. Thus, when the Court made the statement relied upon by t he majority—“when a party as saults a homeowner in his own home . . . , the homeowner has the right to use whatever force necessary to repel the aggressor”—the facts of Hines mak e clear that the assault at is sue was the victim’s act of pointing a gun at the defendant immediately prior to the defendant’s use of deadly force. 11 Id. at 679, 791 S.E.2d at 565. Sands further illustrates the r equirement for an overt act indi cative of imminent death or great bodily harm, the danger of w hich must be reasonably appar ent to the defendant at the

moment he acts in self-defense . In that case, the Supreme Co urt reversed this Court and reinstated the defendant’s convic tion for first-degree murder o f her husband. Sands, 262 Va. at 725, 731, 553 S.E.2d at 734, 737. The defendant had long suffe red abuse at her husband’s hands, including physical assaults a nd death threats in the hou rs leading up to the fatal shooting. Id. at 725-27, 553 S.E.2d at 734-35. A fter the last assault, t he defendant carri ed a gun into the bedroom where her husband was in b ed, watching television. Id. at 728, 730 n.2, 553 S.E.2d at 735, 737 n.2. Her husband asked her, “What are you doing[?],” and the defendant shot him five times. Id. at 728, 553 S.E.2d at 735-36. The trial court refu sed the defendant’s jury instruction on self-defense, finding that the re was insufficient evidence f or such an instruction, and this

10 In enunciating the principle thatwe must look to the defendan t’s viewpoint “at the time of the incident”— i.e. , the moment when force was used—t o determine whether there was an imminent and reasonably apparent danger, the Court in Hines rel ied upon McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808 (1978). See Hines, 2 92 Va. at 679, 791 S.E.2d at 565 (citing McGhee, 219 Va. at 562, 248 S.E.2d at 810). McGhee in turn relied upon Harper v. Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955), whic h makes the principle even more clear. (“What reasonabl y appeared to the accused at the time of the shooting , as creating the necessity for his act, is the test.” (emphasis added) (quot ing Taylor v. Commonwealth, 185 Va. 224, 227-28, 38 S.E.2d 440, 441 (1946))).

11 Hines is factually distinguishab le from the instant case in th at, as noted above, there is no evidence of any assault by Moha mmed at the moment appellant fired his rifle.- 21 - Court held that the refusa l was error. Id. at 728, 553 S.E.2d at 736. In reversing this Court, the Supreme Court concluded that “t he Court of Appeals construed th e term ‘imminent’ to mean something less than ‘immediate.’” Id. at 730, 553 S.E.2d at 73 6. While it agreed that, based upon the long history of abuse, the defendant reasonably believ ed she was in danger of serious bodily harm or death when she shot her husband, the Court deter mined that “[n]evertheless, that reasonable belief is not dispos itive of the issue . . . . The question here is whether the circumstances immediately surr ounding the killin g, specifically , the actions of the defendant’s husband at that time , were sufficient to create a r easonable belief of an imminent danger which had to be met.” Id. at 730, 553 S .E.2d at 737 (emphasis added) . The Court concluded that even when viewed in the light most fa vorable to the defendant, the e vidence “fail[ed] to reveal any overt act by [the defendant’s] hus band that presented an immine nt danger at the time of the shooting .” Id. (emphasis added). Conse quently, the defendant was not entitled to a jury instruction on self-defense. I d. The Court also made clear th at “[t]he requirement of an overt act indicative of imminent danger ensu res that the most extreme rec ourse, the killing of another human being, will be used only in s ituations of necessity.” Id . at 731, 553 S.E.2d at 737. Imminent danger means nothing le ss than immediate danger. Imme diate danger must be signaled by an overt act. That act must make the immediate dan ger so apparent to a defendant that he reasonably believes he must meet it with the use of for ce. I respectfully disagree with the majority that in the instant cas e, more than a scintilla of evi dence supports finding that there was- 22 - such an act or apparent danger atthe moment when appellant sho t Mohammed. Consequently, I find no error by the trial court i n refusing to give appellant’ s self-defense jury instruction. 12

12 In light of this conclusion, I w ould reach appellant’s third a ssignment of error with respect to excluded evidence a nd cross-examination at sentencin g. I would find no error by the trial court, for the reasons advanced by the Commonwealth on br ief—with one exception. Appellant argues, in part, that th e trial court erred in denyin g him the opportunity to cross-examine Mohammed’s sister about his employment record. H owever, appellant never presented this argument to the trial court, and conceded during oral argument that he “did not make a specific objection” on the employment matter. Thus, tha t issue was not preserved for appellate review. See Rule 5A :18; Masika v. Commonwealth, 63 V a. App. 330, 333, 757 S.E.2d 571, 572 (2014) (“The Court of Appeal s will not consider an arg ument on appeal that was not presented to the trial court.” (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998))).