COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Annunziata 

Argued at Alexandria, Virginia 

ROBERT DEWEY KNOTT 

 MEMORANDUM OPINION* BY 

v. Record No. 2931-96-2 JUDGE RICHARD S. BRAY 

 APRIL 7, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG 

John W. Scott, Jr., Judge 

 Martin W. Lester, Deputy Public Defender, for 

appellant. 

 Eugene Murphy, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 A jury convicted Robert Knott (defendant) of voluntary 

manslaughter. At trial, defendant relied upon the theory of 

self-defense and argues on appeal that the evidence was 

insufficient to support the verdict. We agree and reverse the 

conviction.1

 Upon familiar principles, we view the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We, 

therefore, "'discard the evidence of the accused in conflict with 

that of the Commonwealth, and regard as true all the credible 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1We decline to address the remaining issues raised by 

defendant on appeal. 
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evidence favorable to the Commonwealth and all fair inferences 

that may be drawn therefrom.'" Cirios v. Commonwealth, 7 Va. 

App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted). 

 The parties are fully conversant with the record and this 

memorandum opinion recites only those facts necessary to 

disposition on appeal. 

 On January 9, 1996, defendant and the victim, Timothy Moore, 

resided in a homeless shelter located in the City of 

Fredericksburg. At approximately 11:30 p.m., a dispute arose 

between defendant and Moore's friend, Joe Chase, and Moore 

encouraged Chase to fight defendant, offering to ally with him 

and "kick [defendant's] ass." Moments later, Moore, alone, 

accosted defendant, "put his hands in front of [defendant's] 

face" and repeatedly insulted and threatened him. Initially, 

defendant "just stood there," but "swung" at Moore after Moore 

spit on both defendant and another resident, Randy Kaufman. 

Moore, intoxicated2

 and much larger and more muscular than 

defendant, "swang back," but Kaufman deflected the blows. Moore 

continued to taunt and challenge defendant, but defendant moved 

into an adjoining common area, ending the confrontation. 

 Moore, still enraged, returned to his bed and "beat[] his 

fists" on the mattress while Chase attempted "to calm him down." 

 Meanwhile, defendant armed himself with a knife from the shelter 

kitchen, returned to the sleeping area, "went to his bed" and 

 

 2Moore's blood alcohol content tested at 0.22%. 
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"lay[] down." Within seconds, a shirtless Moore approached, 

cornered defendant, "pulled [him] up" from the bed, and declared, 

"chicken s---'s back; I'm going to kill him." Defendant 

resisted, and a struggle ensued, during which defendant stabbed 

or cut Moore in the chest area. Moore, however, persisted, 

wrestling defendant to the floor, holding him "down with his left 

arm, and . . . punch[ing] him with his other arm." Defendant 

then stabbed Moore, but Moore rose to his feet, again declaring 

to defendant his intention "to kill your ass." Kaufman 

intervened, pushed Moore against the lockers, and Moore 

collapsed, dying shortly thereafter from the several knife wounds 

inflicted by defendant during the affray. 

 Defendant testified that he "was losing consciousness" as 

the fight progressed and "was afraid for [his] life at this 

point." Realizing that he "couldn't get out of the situation" or 

"break the grip of Tim Moore," he "grabbed the knife . . . and 

. . . poked it at [Moore] hoping that he would release his grip." 

 Moore, however, "started choking [defendant] . . ., cutting off 

[his] airway, so [defendant] stabbed him." 

 "Self-defense is an affirmative defense which the accused 

must prove by introducing sufficient evidence to raise a 

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

App. 68, 71, 435 S.E.2d 414, 416 (1993) (citing McGhee v. 

Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978)). 

"Killing in self-defense may be either justifiable or excusable 
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homicide. 'Justifiable homicide in self-defense occurs where a 

person, without any fault on his part in provoking or bringing on 

the difficulty, kills another under reasonable apprehension of 

death or great bodily harm to himself.'" Yarborough v. 

Commonwealth, 217 Va. 971, 975, 234 S.E.2d 286, 290 (1977) 

(citations omitted). 

 "The law of self-defense is the law of necessity, and the 

necessity relied upon must not arise out of defendant's own 

misconduct. Accordingly, a defendant must reasonably fear death 

or serious bodily harm to himself at the hands of his victim." 

McGhee, 219 Va. at 562, 248 S.E.2d at 810. "[W]hether the danger 

is reasonably apparent is always to be determined from the 

viewpoint of the defendant at the time he acted." Id. at 562, 

248 S.E.2d at 810. "The law does not require a person to suffer 

the last lethal blow before being able to take up his weapon to 

defend his life." Smith, 17 Va. App. at 72, 435 S.E.2d at 417. 

However, "fear alone" is not sufficient for defendant to act; 

"there must be an overt act indicating the victim's imminent 

intention to kill or seriously harm the accused," id. at 72-73, 

435 S.E.2d at 417 (citing Yarborough, 217 Va. at 975, 234 S.E.2d 

at 290), and "[a] person only has the privilege to exercise 

reasonable force to repel the assault." Foote v. Commonwealth, 

11 Va. App. 61, 69, 396 S.E.2d 851, 856 (1990) (citations 

omitted). 

 Here, the Commonwealth's evidence clearly established that 
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Moore was the aggressor, repeatedly provoking and intimidating 

defendant with both verbal and physical assaults. After 

defendant and Moore exchanged blows during the initial encounter, 

defendant withdrew to the common area and, fearful of Moore, 

armed himself with a knife before returning passively to his 

bunk. However, unwilling to abandon his torment of defendant, 

Moore again angrily attacked, grabbing defendant from his bed, 

assaulting and repeatedly threatening to kill him. Such conduct, 

together with Moore's demonstrated hostility, greater size, 

intoxication, and violent rage created a reasonable apprehension 

in defendant of death or great bodily harm. Under such 

circumstances, defendant reasonably resorted to deadly force in 

repelling Moore's attack, resulting in justifiable homicide as a 

matter of law. 

 Accordingly, we reverse the conviction. 

 Reversed and dismissed.