Present: All the Justices 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 050395 JUSTICE LAWRENCE L. KOONTZ, JR. 

 January 13, 2006 

REBECCA SCARLETT CARY 

FROM THE COURT OF APPEALS OF VIRGINIA 

In an unpublished opinion, the Court of Appeals of Virginia 

vacated Rebecca Scarlett Cary’s convictions in a jury trial for 

the first-degree murder of Mark Beekman, Code § 18.2-32, and the 

use of a firearm in the commission of that crime, Code § 18.2-

53.1. The Court of Appeals reversed the convictions on the 

ground that the trial court erred in excluding evidence of 

Beekman’s prior threats and acts of violence against Cary and in 

failing to grant her proffered jury instructions on selfdefense, right-to-arm, and voluntary manslaughter based upon a 

“heat of passion” theory. Cary v. Commonwealth, Record No. 

2031-03-1, slip op. at 1-2 (December 21, 2004). We awarded the 

Commonwealth an appeal from the judgment of the Court of Appeals 

pursuant to Code §§ 17.1-411 and 19.2-317(C).1

 

1

 The Court of Appeals held, among other things, that the 

evidence was sufficient to support Cary’s convictions, 

necessitating a remand for a new trial. Cary did not assign 

cross-error to this aspect of the judgment of the Court of 

Appeals. Accordingly, this issue is not before us in this 

appeal. 
2

BACKGROUND 

Because the principal issue we consider in this appeal is 

whether the trial court erred in refusing to grant a proper 

instruction of law proffered by the accused, we view the facts 

relevant to the determination of that issue in the light most 

favorable to Cary. Commonwealth v. Sands, 262 Va. 724, 729, 553 

S.E.2d 733, 736 (2001); see also Commonwealth v. Vaughn, 263 Va. 

31, 33, 557 S.E.2d 220, 221 (2002); Commonwealth v. Alexander, 

260 Va. 238, 240, 531 S.E.2d 567, 568 (2000). When so viewed, 

the evidence at trial showed that Cary and Beekman were involved 

in a tumultuous relationship for more than 15 years during which 

time Beekman fathered three of Cary’s four children. Although 

the two had cohabited in the past, they were not living together 

in 2002. They habitually argued violently regarding Beekman’s 

failure to provide child support for his children. 

On May 23, 2002, Cary purchased a handgun “to protect me 

and my children and our home” because she lived in a “bad 

neighborhood.” In August 2002, Cary allegedly told Beekman’s 

sister that she had purchased the handgun and threatened to kill 

Beekman because he continued to fail to provide child support. 

Cary allegedly made a similar statement to Tracy Tabron the day 

before Beekman was killed. Cary denied making these statements. 

On the evening of September 6, 2002, Beekman went to Cary’s 

apartment in the City of Norfolk. Cary detected the odor of 
3

alcohol on Beekman’s person and knew from past experience that 

Beekman became violent when intoxicated. Post-mortem tests 

subsequently confirmed that Beekman had a highly-elevated blood 

alcohol level and also that he had recently used cocaine. The 

couple immediately began to quarrel over Beekman’s failure to 

provide Cary with child support, and Beekman called Cary vulgar 

names and attacked her, grabbing her by the hair and hitting her 

in the “face and sides.” Beekman refused to leave the apartment 

despite Cary’s request that he do so. 

Cary testified that when Beekman went to use the bathroom 

in the apartment, she decided to retrieve the handgun from where 

she kept it, but found that Darron, her teenage son, had already 

done so. Cary took the handgun from Darron and removed its 

ammunition clip, intending to use the apparently unloaded weapon 

to frighten Beekman into leaving the apartment. 

When Beekman came out of the bathroom, Cary was sitting on 

a couch in the living room. Beekman again refused to leave the 

home and “was still verbally assaulting” Cary, threatening that 

he would “smack” her, “‘F’ [her] up,” and “break [her] up.” As 

Beekman “was getting ready to come into the living room,” Cary 

pointed the handgun at Beekman, and it discharged. The bullet 

struck Beekman in the chest. Cary could not “remember doing 

anything [to make the handgun] go off” and “believe[d] it was on 
4

safety” and unloaded. Cary subsequently testified that she 

thought Beekman intended to resume his physical assault on her. 

Cary instructed her son to call 911 and proceeded to apply 

pressure to the wound in Beekman’s chest. Cary pulled Beekman’s 

body outside of the home, later explaining that she did so 

because “the ambulance could get to him a whole lot faster . . . 

instead of them having to come all through the house.” 

Emergency medical technicians arrived and attempted to revive 

Beekman, but were unsuccessful. 

When police arrived following the shooting, Cary first 

claimed that an unknown assailant had shot Beekman outside the 

home and that Beekman had come to the home’s door “holding his 

chest and gasping for air.” Cary repeated versions of this 

fabrication to the police several times that night. 

When the police subsequently interviewed Cary two days 

after the shooting, she claimed to be unable to remember what 

had happened but that her memory “was starting to come back.” 

However, she denied having a handgun in the home and when asked 

if she had shot Beekman, Cary responded, “I don’t think so.” As 

the interview progressed, Cary ultimately admitted to police 

that she had shot Beekman, but maintained that she had only 

intended to frighten him into leaving the home and that the 

handgun had discharged accidentally. Cary also told police that 
5

after the shooting, she gave the handgun to her son to give to 

his uncle, who disposed of it. The handgun was never recovered. 

On December 4, 2002, a grand jury indicted Cary for the 

first-degree murder of Beekman and use of a firearm in the 

commission of a felony. On April 7, 2003, a jury trial 

commenced in the Circuit Court of the City of Norfolk (trial 

court) with the Commonwealth presenting evidence in accord with 

the above-recited facts. 

Relevant to the issues raised in this appeal, during her 

direct testimony in her defense Cary sought to introduce 

evidence of Beekman’s prior threats and acts of violence against 

her. The Commonwealth objected to the introduction of such 

evidence, contending that “a defendant cannot introduce evidence 

of a victim’s reputation for violence or evidence of specific 

facts of violence unless the defendant first adduces evidence of 

self-defense.” The Commonwealth asserted that because Cary was 

claiming the shooting occurred accidentally, she could not also 

claim self-defense. The Commonwealth asserted further that, in 

any case, there had been no evidence of any overt act by Beekman 

at the time of the shooting that would have placed Cary in 

reasonable fear for her life or safety. The Commonwealth 

contended that, when Beekman went to the bathroom, he had 

effectively ended his assault on Cary and did nothing afterwards 

to place her in fear. 
6

Cary responded that she was entitled to assert concurrent 

claims of accident and self-defense and that these claims were 

not mutually exclusive. Cary contended that the evidence did 

show an overt act sufficient to put Cary in fear for her life or 

safety. Cary maintained that Beekman’s uninvited presence in 

the home, his verbal and physical abuse of her, and his refusal 

to leave after repeated requests, were part of a pattern of 

behavior that she could have reasonably believed would continue 

when Beekman returned from the bathroom, given his continued 

verbal abuse and refusal to leave the home. Moreover, Cary 

maintained that the space of time between the actual assault on 

her and the shooting was sufficient to permit the jury to find 

that Cary remained in imminent danger. At this point in the 

proceeding, however, Cary did not assert the argument that 

Beekman was actually advancing toward her when the gun 

discharged. 

Before ruling on the admissibility of the anticipated 

evidence of Beekman’s prior acts of violence, the trial court 

asked Cary’s counsel if she had “presented all the evidence that 

. . . supports the establishment of [a] prima facie case [for] 

self-defense . . . including overt acts in support of that 

particular defense.” Counsel responded that the series of 

actions by Beekman that preceded the shooting constituted the 

overt act necessary to establish an apprehension of imminent 
7

harm and that it was for the jury to determine whether Cary’s 

fear was reasonable. 

The trial court then ruled that Beekman’s assault on Cary 

prior to the shooting was not an overt act sufficient to support 

a claim of self-defense, agreeing with the Commonwealth that 

when Beekman stopped the attack to go to the bathroom, Cary was 

no longer in imminent danger. The trial court reasoned that 

Cary’s presence of mind in retrieving the handgun and of 

removing the ammunition clip showed that she was no longer in 

fear. The trial court further reasoned that at the time of the 

shooting, Cary did not claim that she was “using that weapon to 

repel any act or prevent any act by [Beekman] at that moment in 

time.” Accordingly, the trial court ruled that Cary would not 

be entitled to present evidence of Beekman’s prior threats and 

acts of violence against her and that she could not assert a 

defense of self-defense. 

After the trial court made this ruling, Cary continued her 

testimony. During redirect examination, Cary testified that 

immediately prior to shooting Beekman, “[h]e was coming back. I 

am not sure whether he was walking or running.” After this 

evidence was received, Cary did not request the trial court to 

reconsider its prior ruling that there was no evidence of an 

overt act by Beekman after he returned from the bathroom that 
8

would have caused Cary to be in reasonable fear for her life or 

safety. 

Outside the presence of the jury, however, the trial court 

permitted Cary to proffer evidence of Beekman’s prior threats 

and acts of violence against her. That evidence, presented by 

Cary and her son, established that Beekman had raped Cary when 

they first met and that he had physically abused her and her 

children throughout their relationship. On one occasion, 

Beekman cut her face with a glass, allegedly resulting in “75 

stitches,” and on another he broke her jaw. Beekman was 

particularly prone to violence when he was intoxicated. 

Cary proffered instructions on the defenses of self-defense 

and heat of passion and further requested that the jury be 

instructed on the right-to-arm. Cary also sought an instruction 

on the lesser-included offense of voluntary manslaughter. The 

trial court refused these instructions. 

The jury convicted Cary of both charged offenses and 

sentenced her to 20 years imprisonment for the first-degree 

murder of Beekman and three years imprisonment for the firearm 

offense. In an order dated September 17, 2003, the trial court 

imposed sentence in accord with the jury’s verdicts. 

Cary noted an appeal in the trial court and filed a 

petition for appeal in the Court of Appeals. In opposing Cary’s 

petition, relevant to her claim that the trial court erred in 
9

not instructing the jury on self-defense, the Commonwealth did 

not assert a procedural bar with respect to this issue. 

Instead, the Commonwealth argued that the trial court correctly 

found that the record did not support a finding that Cary was 

acting in self-defense. 

After Cary’s petition for appeal was granted in part by the 

Court of Appeals, the Commonwealth raised for the first time the 

issue whether Cary’s assertion that the trial court erred in not 

instructing the jury on self-defense was procedurally barred. 

The Commonwealth asserted that Cary had not expressly “argued to 

the trial court that Beekman was advancing on Cary at the time 

she shot him” when the self-defense instruction was proffered. 

The Commonwealth further maintained that Cary’s assertion that 

she should have been permitted to introduce evidence of 

Beekman’s prior threats and acts of violence against her was 

also procedurally barred because at the time she sought to 

introduce such evidence she had not yet testified that Beekman 

was either “walking or running” toward her when the gun 

discharged and did not reassert the issue once that evidence was 

presented. 

In reversing Cary’s convictions, the Court of Appeals did 

not expressly address the Commonwealth’s assertion of a 

procedural bar. However, the Court of Appeals expressly found 

that with regard to Beekman’s actions immediately prior to the 
10

shooting, Cary “testified without equivocation that ‘he was 

coming back’ and she was ‘not sure whether he was walking or 

running.’ ” Cary, Record No. 2031-03-1, slip op. at 7-8. 

Accordingly, the Court of Appeals held that “[t]his evidence, 

viewed in the light most favorable to [Cary], established an 

overt act of sufficient imminence to entitle her to a selfdefense instruction because it supported a finding that the 

victim, although still over ten feet away, was advancing toward 

her in a threatening fashion to resume the attack he had stopped 

only moments earlier.” Id. at 8. 

In reaching this conclusion, the Court of Appeals 

distinguished Sands, the principal case relied upon by the 

Commonwealth, stating that facts in the present case stood “in 

marked contrast to those in Sands, in which the victim had at 

least temporarily ceased his repeated attacks on the defendant 

and was watching television in another room when she retrieved a 

gun and ‘shot him five times while he reclined on the bed.’ ” 

Id. (quoting Sands, 262 Va. at 730, 553 S.E.2d at 737). The 

Court of Appeals further held that although Beekman, like the 

victim in Sands, “appeared [to be] unarmed [that fact] does not 

defeat the threat. The victim had beaten [Cary] with his fists 

on numerous prior occasions and, on one occasion, broke a glass 

in her face. [Cary] testified that, prior to the night on which 
11

she shot the victim, he had beaten her as recently as the 

previous weekend.” Id.

The Court of Appeals further noted that Cary’s claim that 

the killing “was an accident does not prevent her from asserting 

a legal claim of self-defense.” Id. (citing Valentine v. 

Commonwealth, 187 Va. 946, 953, 48 S.E.2d 264, 268 (1948)); see

also Jones v. Commonwealth, 196 Va. 10, 14-15, 82 S.E.2d 482, 

484-85 (1954). Accordingly, the Court of Appeals held that the 

trial court erred in failing to instruct the jury on selfdefense.2

 Cary, Record No. 2031-03-1, slip op. at 1-2. 

The Court of Appeals reasoned that because the record would 

have supported giving an instruction on self-defense, “at least 

some of [Cary’s] evidence about the victim’s prior threats and 

abuse was admissible to show ‘the reasonable apprehensions of 

[appellant] for [her] life and safety,’ immediately prior to the 

 

2

 In dictum, the Court of Appeals further opined that “even 

if [Cary] had not been entitled to an instruction indicating 

that the right of self-defense fully justified her use of deadly 

force because the threat posed by the victim was not 

sufficiently imminent, she nevertheless was entitled to an 

instruction indicating that the right of self-defense justified 

her merely threatening to use such force.” Cary, Record No. 

2031-03-1, slip op. at 10. Cary did not proffer such an 

instruction and does not assert in this appeal that the trial 

court should have amended the instruction she proffered to 

reflect her right to threaten the use of force. Accordingly, we 

express no opinion on this aspect of the Court of Appeals’ 

judgment. 
12

shooting.” Id., slip op. at 6 (quoting Canipe v. Commonwealth, 

25 Va. App. 629, 640-41, 491 S.E.2d 747, 752 (1997)); see also 

Randolph v. Commonwealth, 190 Va. 256, 265, 56 S.E.2d 226, 230 

(1949). The Court did not address the Commonwealth’s assertion 

that at the time she first sought to introduce the evidence of 

Beekman’s prior threats and acts of violence she had not yet 

introduced evidence that Beekman was advancing on her when the 

gun discharged. 

The Court of Appeals further held that because Cary’s claim 

of right-to-arm would have been supported by the evidence of 

Beekman’s prior threats and acts of violence and, thus, would 

potentially rebut the Commonwealth’s assertion that her purchase 

of the handgun showed premeditation, the trial court erred in 

refusing Cary’s instruction on right-to-arm. Cary, Record No. 

2031-03-1, slip op. at 10-13. Addressing Cary’s assertion that 

she was entitled to a heat of passion instruction and further 

that this would have warranted the trial court instructing the 

jury on the lesser-included offense of voluntary manslaughter, 

the Court of Appeals held that Cary’s “testimony of the victim’s 

prior conduct that evening and her testimony that he was coming 

back into the living room, where she feared he would assault her 

further and perhaps kill her, created a jury issue on whether 

there had been a cooling off period sufficient to preclude a 

finding that [Cary] acted in the heat of passion.” Id. at 14. 
13

The Court of Appeals recognized that “[w]hen a jury is 

instructed on first-degree murder and second-degree murder and 

convicts the defendant of first-degree murder, such a verdict 

‘compels the conclusion that [the jury] would never have reached 

a voluntary manslaughter verdict.’ ” Id. (quoting Turner v. 

Commonwealth, 23 Va. App. 270, 277, 476 S.E.2d 504, 507 (1996), 

aff’d, 255 Va. 1, 492 S.E.2d 447 (1997)). However, the Court of 

Appeals concluded that the trial court’s failure to instruct the 

jury on self-defense and right-to-arm might have impacted the 

jury’s consideration of the evidence in favor of finding firstdegree murder and, thus, it was not clear that a properly 

instructed jury would not have considered the lesser offense of 

voluntary manslaughter in the heat of passion. Id. at 14-15. 

Accordingly, the Court of Appeals held that the trial court 

erred in failing to instruct the jury on that offense. Id. at 

1-2. 

Although the Court of Appeals vacated Cary’s convictions, 

it nonetheless found the evidence sufficient to sustain those 

convictions and remanded the case for a new trial. Id. at 17. 

The Commonwealth filed a petition for rehearing en banc, 

asserting, among other arguments, that the Court had erred in 

failing to address the assertion of a procedural bar to the 

self-defense issue. By order entered February 8, 2005, the 

Court of Appeals refused the petition for rehearing en banc. 
14

DISCUSSION 

Before addressing the merits of the substantive issues 

raised in this appeal, we first address the Commonwealth’s 

second assignment of error that “[t]he Court of Appeals erred in 

ignoring the fact that Cary’s argument on appeal on the issue of 

self-defense was procedurally defaulted.” In briefing this 

assignment of error, the Commonwealth argued this issue in 

conjunction with its first assignment of error asserting that 

the Court of Appeals erred in rejecting the trial court’s 

decision to exclude evidence of Beekman’s prior threats and acts 

of violence against Cary. The Commonwealth contends that the 

procedural default applies both to Cary’s assertion that the 

trial court erred in denying her an instruction on self-defense 

and her assertion that the trial court erred in refusing to 

admit that evidence. However, because the Commonwealth’s 

assignment of error asserts only that the default related to 

“the issue of self-defense,” we will confine our consideration 

of the alleged procedural default to the failure to grant a 

self-defense instruction. 

The Commonwealth maintains that in offering the selfdefense instruction, Cary “never articulated for the court what 

overt act the victim had committed.” Thus, the Commonwealth 

contends that Cary’s argument made in the Court of Appeals, and 

reiterated here, that the evidence supports, directly or by 
15

inference, that Beekman was advancing upon her at the time of 

the killing, is procedurally barred. We disagree. 

When a trial court refuses to give an instruction proffered 

by a party that is a correct statement of law and which is 

supported by adequate evidence in the record, this action, 

without more, is sufficient to preserve for appeal the issue of 

whether the trial court erred in refusing the instruction. Cf.

Atkins v. Commonwealth, 257 Va. 160, 178 n.9, 510 S.E.2d 445, 

456 n.9 (1999) (failure to raise “a precise objection to the 

Commonwealth’s proposed verdict form” did not bar consideration 

of issue on appeal when defendant had proffered a correct 

verdict form); see also Pilot Life Insurance Co. v. Karcher, 217 

Va. 497, 498, 229 S.E.2d 884, 885 (1976). This is so because 

when an instruction is proffered on “a principle of law [that] 

is vital to a defendant in a criminal case, a trial court has an 

affirmative duty properly to instruct a jury about the matter.” 

Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 

(1991). Indeed, in Jimenez, we held the failure of the trial 

court to properly instruct the jury was so serious as to warrant 

invoking the “ends of justice” exception of Rules 5A:18 and 5:25 

despite the defendant’s failure to object to the improper 

instruction actually given. Id. at 251, 402 S.E.2d at 681-82. 

Thus, we hold that Cary’s proffer of a correct instruction 

on the defense of self-defense is sufficient to preserve for 
16

appeal the question whether the trial court erred in refusing 

that instruction. It was not necessary for Cary to expressly 

articulate each element necessary to her defense, because the 

trial court heard the evidence and could evaluate its 

application to the proffered instruction, which unquestionably 

was vital to Cary’s case.

We now consider whether the Court of Appeals correctly 

concluded that the evidence was sufficient to warrant the jury 

being instructed on the defense of self-defense. The 

Commonwealth contends that in determining that the trial court 

erred in failing to grant Cary’s self-defense instruction, 

“[t]he Court of Appeals . . . stitch[ed] together unconnected 

threads from various portions of Cary’s testimony to create the 

impression of an overt act.” The Commonwealth further contends 

that although these “unconnected threads” of evidence were 

before the trial court when it rejected Cary’s proffered selfdefense instruction, the evidence was not unequivocal, and when 

viewed in the context of Cary’s full testimony established 

nothing more than that Beekman was returning to the living room 

from the bathroom, and not that he was advancing upon Cary in a 

threatening manner. 

Cary responds that the Commonwealth’s argument fails to 

apply the proper standard for reviewing the refusal of a correct 

instruction of law. Because that standard requires that the 
17

evidence be viewed in the light favorable to Cary, as the 

proponent of the instruction, Cary contends that the Court of 

Appeals properly focused its attention on those elements of her 

testimony that the jury could have found supported her claim of 

self-defense. 

Both parties rely extensively upon the rationale underlying 

the holding in Sands to support their respective positions. 

Certainly, that case provides the most recent, succinct, and 

comprehensive survey of the law of self-defense as it has 

developed in this Commonwealth: 

The principles governing a plea of self-defense 

are well-established. Self-defense is an affirmative 

defense to a charge of murder, and in making such a 

plea, a “defendant implicitly admits the killing was 

intentional and assumes the burden of introducing 

evidence of justification or excuse that raises a 

reasonable doubt in the minds of the jurors.” McGhee 

v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 

(1978). The “bare fear” of serious bodily injury, or 

even death, however well-grounded, will not justify 

the taking of human life. Stoneman v. Commonwealth, 

66 Va. 887, 900 (1874). “There must [also] be some 

overt act indicative of imminent danger at the time.” 

Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E. 

775, 776 (1935). See also Yarborough v. Commonwealth, 

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

v. Commonwealth, 150 Va. 588, 597, 142 S.E. 369, 371 

(1928). In other words, a defendant “must wait till 

some overt act is done[,] . . . till the danger 

becomes imminent.” Vlastaris, 164 Va. at 652, 178 

S.E. at 777. In the context of a self-defense plea, 

“imminent danger” is defined as “an immediate, real 

threat to one’s safety . . . .” Black’s Law 

Dictionary 399 (7th ed. 1999). “There must be . . . 

some act menacing present peril . . . [and] the act 

. . . must be of such a character as to afford a 

reasonable ground for believing there is a design 
18

. . . to do some serious bodily harm, and imminent 

danger of carrying such design into immediate 

execution.” Byrd v. Commonwealth, 89 Va. 536, 539, 16 

S.E. 727, 729 (1893). 

Sands, 262 Va. at 729, 553 S.E.2d at 736. 

Moreover, in Sands, this Court reiterated the wellestablished rule that, as with any proffered instruction that is 

otherwise a correct statement of law, an instruction on the 

defense of self-defense “is proper only if supported by more 

than a scintilla of evidence” and “it is not error to refuse an 

instruction when there is no evidence to support it.” Id.

(emphasis added). 

Except that the victim and the defendant in Sands were 

married, the underlying history of their relationship is 

materially indistinguishable from that of the tumultuous 

relationship between Beekman and Cary. In both instances, the 

couples had a long history of acts of violence committed by the 

male upon the female that were frequently occasioned by the 

excessive use by the male of alcohol and illicit drugs. In both 

instances, the male had made repeated threats to kill the 

female, and the female had a subjective belief that the male 

would eventually carry out that threat. See id. at 725-27, 553 

S.E.2d at 734-35. 

In Sands, on the evening of the killing, the victim had 

savagely beaten the defendant. However, the evidence showed 
19

that subsequent to that assault, the defendant’s sister-in-law 

had arrived at the couple’s home and offered assistance to the 

defendant. Id. at 727-28, 553 S.E.2d at 735. Meanwhile, the 

victim “was lying in bed, watching television.” Id. at 728, 553 

S.E.2d at 735. The defendant, who was in the bathroom with her 

sister-in-law, suddenly became frantic, went to the kitchen 

where she retrieved a gun, and then went to the bedroom. The 

victim merely asked the defendant what she was “doing,” and then 

the defendant shot the victim five times, killing him. Id. at 

728, 533 S.E.2d at 735-36. 

This Court concluded that there was no evidence to support 

the defendant’s proffered self-defense instruction because the 

record did not “reveal any overt act by her husband that 

presented an imminent danger at the time of the shooting.” Id.

at 730, 533 S.E.2d at 737. This Court specifically noted that 

while less than an hour had elapsed between the victim ending 

his assault on the defendant and the shooting, id. at 730 n.2, 

553 S.E.2d at 737 n.2, “sufficient time elapsed for [the sisterin-law] to arrive at the couple’s home, and for the defendant to 

view the extent of her injuries while in the bathroom with [the 

sister-in-law], walk from the bathroom to the living room door, 

turn around and proceed back into the kitchen, retrieve a gun 

from a cabinet, and walk back into the bedroom where her husband 
20

was reclining on the bed, watching television.” Id. at 730, 553 

S.E.2d at 737. 

In the present case, when considered in the light most 

favorable to Cary, the evidence is sufficient to establish 

Cary’s genuine fear for her life in view of the atrocities 

inflicted upon her by Beekman. Thus, as before, we are 

concerned only with whether the record would provide the trierof-fact with more than a scintilla of evidence to support a 

finding that there was an overt act of sufficient imminence on 

the part of Beekman that would warrant Cary to act upon that 

genuine fear to use deadly force in self-defense. 

The Commonwealth asserts, and we agree, that Cary cannot 

rely solely on the initial assault upon her as the “overt act” 

that occasioned her resort to self-defense. However, contrary 

to the apparent view of the Commonwealth, neither may we 

disregard that evidence entirely, merely because “Beekman 

retired to the bathroom” for approximately five minutes. 

Rather, we consider Beekman’s subsequent actions in light of 

that assault. 

Contrary to the assertion made by the Commonwealth, the 

evidence in this case, again viewed in the light most favorable 

to Cary, does not “simply indicate[] that Beekman walked back 

into the living room after using the bathroom.” Nor is it 

necessary for us to “stitch together unconnected threads from 
21

various portions of Cary’s testimony to create the impression of 

an overt act.” 

According to Cary’s testimony, Beekman did not simply 

emerge from the bathroom and make his way to the living room. 

Rather, she confronted Beekman as he returned to the living room 

and repeated her demand that he leave the home. Beekman refused 

this demand and threatened to “smack” her and commit other acts 

of violence upon her. It was in this context that Cary 

testified that Beekman was “walking or running” toward her. And 

that fact must be viewed in the context that Beekman’s assault 

on Cary, which had ended only five minutes before, had been 

occasioned by the same demand that he leave the home, his 

refusal, and a vile verbal assault. When so viewed, the trierof-fact could reasonably conclude that Beekman, although 11 to 

18 feet away from Cary at the time of the shooting, was 

nonetheless advancing toward her with the intent to resume his 

physical assault upon her. Such act constituted an overt act of 

sufficient imminence on the part of Beekman to warrant Cary to 

respond in her defense. Accordingly, we hold that the Court of 

Appeals did not err in finding that there was sufficient 

evidence in the record to warrant the trial court instructing 

the jury on Cary’s claim of self-defense and, thus, that the 

trial court erred in not giving the proffered self-defense 

instruction. 
22

The Commonwealth also contends that even if the evidence in 

its entirety entitled Cary to have the jury instructed on selfdefense, the Court of Appeals nonetheless erred in finding that 

the trial court improperly refused to admit Cary’s proffered 

testimony concerning Beekman’s prior threats and acts of 

violence against her. As it did in the Court of Appeals, the 

Commonwealth contends that at the time Cary sought to introduce 

this evidence during her direct testimony, she had not yet 

presented the evidence she now relies upon to establish the 

overt act necessary for a claim of self-defense, and she did not 

request that the trial court revisit its decision once that 

evidence had been presented during her re-direct testimony. 

We agree with the Commonwealth that at the time Cary sought 

to introduce the evidence of Beekman’s prior threats and acts of 

violence, in response to the trial court’s express inquiry, her 

counsel relied only on the evidence as it existed at that point 

in the trial as the basis for establishing a claim of selfdefense. Thus, the trial court correctly excluded the proffered 

evidence because at that time evidence of an overt act 

sufficiently imminent to support a claim of self-defense by Cary 

had not been presented. 

However, the issue is mooted by our holding that the 

evidence ultimately supported the assertion of an overt act 

warranting a self-defense instruction. Because the case will be 
23

remanded and the evidence well may be presented differently upon 

a new trial, we will not give an advisory opinion regarding 

whether evidence of Beekman’s prior threats and acts of violence 

would be admissible if proffered again. Kanter v. Commonwealth, 

171 Va. 524, 532-33, 199 S.E. 477, 481 (1938); see also Cantrell 

v. Crews, 259 Va. 47, 52, 523 S.E.2d 502, 504 (2000). 

For the same reason, we do not consider the Commonwealth’s 

remaining assignments of error concerning the judgments of the 

Court of Appeals reversing the trial court on the right-to-arm, 

heat of passion, and voluntary manslaughter issues. While we do 

not discount the Commonwealth’s assertions on these issues and 

recognize that they may likely recur in the event of a new 

trial, it is also likely that the presentation of evidence will 

be sufficiently different that any expression by this Court as 

to the correctness of the rulings of the trial court in the 

former trial, or of the Court of Appeals in reversing those 

rulings, would not be relevant and advisory only. 

CONCLUSION 

For these reasons, we will affirm the judgment of the Court 

of Appeals vacating Cary’s convictions and remanding the case to 

the trial court for a new trial, if the Commonwealth be so 

advised. 

Affirmed. 
24

JUSTICE AGEE, with whom JUSTICE KINSER joins, dissenting. 

For the reasons stated below, I find that the Court of 

Appeals erred in holding that Rebecca Scarlett Cary was entitled 

to jury instructions on self-defense and accidental self-defense 

because her appellate argument of the overt act of imminent 

danger justifying self-defense under Commonwealth v. Sands, 262 

Va. 724, 553 S.E.2d 733 (2001), is barred by Rule 5:25. On that 

basis, I also find the Court of Appeals erred in ruling evidence 

of the decedent’s prior acts of violence to be admissible. 

Furthermore, I believe the Court of Appeals was in error to 

adjudge Cary entitled to jury instructions on the right to arm 

and voluntary manslaughter. Therefore, I respectfully dissent 

from the majority opinion and would reverse the judgment of the 

Court of Appeals. 

I. THE SELF-DEFENSE CLAIMS 

The majority opinion correctly recites from our holding in 

Sands that in order for the affirmative defense of self-defense 

to apply “[t]here must [also] be some overt act indicative of 

imminent danger at the time” made against the defendant. Id. at 

729, 553 S.E.2d at 736 (citation omitted). That overt act must 

be “some act menacing present peril” and “of such a character as 

to afford a reasonable ground for believing there is a design 

. . . to do some serious bodily harm, and imminent danger of 

carrying such design into immediate execution.” Id. (citations 
25

omitted). On appeal, at least in this Court, Cary has posited 

the overt act justifying her claims of self-defense to be that 

Beekman advanced at her in the apartment in such a way as to 

constitute an “imminent danger” about to be carried “into 

immediate execution” when she shot him. This is a position 

never argued in the trial court and only implied before the 

Court of Appeals. 

The overt act of imminent danger is crucial because it is 

the foundation without which Cary is not entitled to a jury 

instruction on self-defense. Id.; see also Mealy v. 

Commonwealth, 135 Va. 585, 596, 115 S.E. 528, 531 (1923). 

Furthermore, and just as importantly, the overt act justifying 

self-defense is an absolute condition precedent to Cary’s claim 

for an instruction on accidental self-defense, see Braxton v. 

Commonwealth, 195 Va. 275, 277-78, 77 S.E.2d 840, 841-42 (1953) 

(recognizing that the defenses of accident and self-defense are 

ordinarily mutually exclusive, except where the accused is 

“lawfully acting in self-defense” because of the victim’s overt 

act but the death is allegedly accidental, such as “where in a 

struggle over the possession of a weapon it was accidentally 

discharged”), or to the admission into evidence of the victim’s 

character for violence or aggression. Mealy, 135 Va. at 596, 

115 S.E. at 531 (“evidence [that the decedent was a quarrelsome, 

dangerous and ferocious man] was not admissible . . . because 
26

there was no foundation in the case for the theory of selfdefense, and the dangerous character of the deceased was, 

therefore, not material.”). Thus, if the record fails to 

support Cary’s claim that she argued Beekman’s advance on her as 

the overt act justifying self-defense in the trial court, then 

all of her related claims of trial court error, as found by the 

Court of Appeals, fail. 

The Commonwealth makes three assignments of error1

 to the 

judgment of the Court of Appeals which relate to the issue of 

self-defense: admission into evidence of the decedent’s alleged 

prior violent acts, a self-defense jury instruction and an 

accidental self-defense jury instruction (collectively the 

“self-defense claims”). As noted above, without an overt act 

menacing present peril to the defendant, self-defense is not 

available as an affirmative defense and all of Cary’s claims on 

these three issues fail. If the trial court correctly found 

there was no overt act under Sands that justified the giving of 

 

1

 Assignment of Error 1 alleges: “The Court of Appeals erred 

in holding that the record showed an overt act by the victim 

that required the trial court to admit certain evidence of past 

acts of violence by the victim and further required a selfdefense instruction.” 

Assignment of Error 2 alleges: “The Court of Appeals erred 

in ignoring the fact that Cary’s argument on appeal on the issue 

of self-defense was procedurally defaulted.” 

Assignment of Error 3 alleges: “The Court of Appeals erred 

in holding that the trial court should have granted Cary’s 
27

an instruction on self-defense, then as a matter of law, the 

requisite showing of a defense of self-defense could not be 

present to legitimize the admission of alleged prior acts of 

violence by the victim. Mealy, 135 Va. at 596, 115 S.E. at 531; 

see also Jordan v. Commonwealth, 219 Va. 852, 855, 252 S.E.2d 

323, 325 (1979); Burford v. Commonwealth, 179 Va. 752, 767, 20 

S.E.2d 509, 515 (1942); Harrison v. Commonwealth, 79 Va. 

(4 Hans.) 374, 378-79 (1884). Thus, all three of the foregoing 

issues comprising the Commonwealth’s first three assignments of 

error rise or fall on whether the requisite overt act justifying 

self-defense was before the trial court. 

Rule 5:25 of the Rules of the Supreme Court of Virginia 

states: 

Error will not be sustained to any ruling of the trial 

court or the commission before which the case was 

initially tried unless the objection was stated with 

reasonable certainty at the time of the ruling, except 

for good cause shown or to enable this Court to attain 

the ends of justice. 

“The purpose of Rule 5:25,” as we have previously stated, “is to 

give the trial court an opportunity to rule on a matter with 

knowledge of the substance of a party’s objection, in order to 

avoid needless mistrials, reversals, and appeals.” Morgen 

Indus., Inc. v. Vaughan, 252 Va. 60, 67, 471 S.E.2d 489, 493 

 

instruction on accidental self-defense where there was no overt 

act.” 
28

(1996) (declaring an issue procedurally barred because the 

record showed that the proponent’s arguments on appeal differed 

from the arguments it made to the trial court). In addition, 

“Rule 5:25 exists to protect the trial court from appeals based 

upon undisclosed grounds, to prevent the setting of traps on 

appeal, to enable the trial judge to rule intelligently, and to 

avoid unnecessary reversals and mistrials.” Fisher v. 

Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988). 

A. The Overt Act Argued in the Trial Court 

 Before determining that Cary had not set forth a prima 

facie case of self-defense and therefore could not present 

evidence of Beekman’s prior violent acts, the trial court 

specifically questioned Cary’s trial counsel: “[D]o you 

represent to the Court that you have presented all of the 

evidence that you claim supports the establishment of your prima 

facie . . . self-defense defense including overt acts in support 

of that particular defense . . . ?” Counsel's response is 

unequivocal: 

 Your Honor, I believe that with the testimony of 

Ms. Cary as to the actions of the victim, Mark 

Beekman, on the evening in question where he had 

proceeded to assault her, make verbal threats towards 

her and [by] other means terrorize her that evening, 

that that does constitute the overt act. And as I had 

previously said, the issue of imminence, I believe, is 

an issue for the jury. 

 The overt act in Ms. Cary’s mind at the time put 

her or would have put her in a position to fear, as 

she stated, future violence against her and that at 
29

the time her son had brought the gun from the room, 

she was still under that fear. 

 Although the overt act may not have coincided or 

occurred concomitantly at the exact same moment as the 

possession of the weapon, it was fresh enough in her 

mind the actions that Mr. Beekman had taken against 

her as well as the verbal threats that he had made as 

to constitute an overt act for purposes [of a] selfdefense defense. 

(Emphasis added). The Court immediately asked, “So then is the 

answer to my question yes?” Cary’s attorney replied, “Yes.” 

 Cary’s trial counsel never mentions in this direct exchange 

or anywhere else in the record that Beekman advancing toward 

Cary immediately prior to the shooting was the overt act of 

immediate peril creating an imminent danger to Cary that 

supports self-defense. Cary never made any argument regarding 

the self-defense or accidental self-defense instructions that 

differed from this argument. Indeed, counsel’s statement here 

not only omits any contention that the decedent was moving 

toward Cary immediately prior to the shooting, but it actually 

negates that argument by admitting the alleged overt act “may 

not have coincided or occurred concomitantly” with the 

possession and firing of the gun. From this text, Cary’s trial 

court argument of an overt act justifying self-defense does not 

include even a passing reference to Beekman’s movement toward 

Cary immediately prior to the shooting. To the contrary, Cary’s 

trial court argument is based on the totality of the decedent’s 

prior acts both earlier that evening and on previous occasions. 
30

Indeed, when defense counsel contended that Cary was 

entitled to instructions on self-defense and accidental selfdefense, she did so because: 

while [Cary] was holding the gun in self-defense of 

herself, the victim returns to the room, is continuing 

to make threats to her which, based on her prior 

experience that evening, the assault coupled with the 

threats, she at that time believed herself to be in 

reasonable danger. 

So I would submit the overt act, even though it 

did not occur concomitantly with the gun going off, 

occurred in a reasonable time which the jury could 

determine led Ms. Cary to believe that she was in 

imminent danger. 

(Emphasis added). Once again, in arguing to the trial court 

that a sufficient overt act existed, Cary never argued that 

Beekman advanced toward her immediately prior to the shooting. 

Instead, Cary again represented that the opposite occurred 

because the overt act “did not occur concomitantly with the gun 

going off.” (Emphasis added). 

 In addition to defense counsel’s own statements, which 

contradict the argument now made on appeal, the trial court 

transcripts reflect several instances in which the trial court 

attempted to clarify Cary’s position and explain the basis for 

its holdings. For example, in reviewing the facts in the light 

most favorable to Cary on self-defense and accidental selfdefense, the trial court summarized her testimony: 

[Cary] says that more conversation takes place, and 

then the gun goes off accidentally, clearly the gun 

goes off accidentally. She does not testify, does not 
31

suggest that she was using that weapon to repel any 

act or to prevent any act by the defendant at that 

moment in time. She was simply holding a gun that she 

believed to be empty, and that it accidentally 

discharged and struck him in the chest which 

ultimately resulted in his death. 

. . . . 

There is no claim that there was some struggle, that 

he was assaulting her, that she was repelling that 

force and that in the context of that this gun 

accidentally went off. 

(Emphasis added). Similarly, after hearing Cary’s later proffer 

of testimony, the trial court stated: 

[N]otwithstanding anything that’s been said at this 

stage through the proffer is that the defendant 

clearly did not set forth any overt act on [the day of 

the shooting] or any basis upon which a viable case of 

self-defense could reasonably or rationally be 

considered in this case. . . . at the time of the 

event the defendant’s and her son’s testimony clearly 

state that there was no act of overt threat or 

violence toward the defendant at the time. 

At no time during or after these statements from the bench did 

Cary object to the characterization of her arguments or contend 

to the trial court that the decedent’s movements immediately 

prior to the shooting established the existence of an overt act 

justifying self-defense. Instead, the sole basis argued to the 

trial court at any time was that the overt act of imminent 

danger to Cary was the decedent’s prior physical and verbal 

assaults. 

The arguments now made by Cary, and adopted by the Court of 

Appeals and the majority opinion, were simply never made at 
32

trial. For example, nothing in Cary’s proffered testimony 

supports the claim that the decedent committed the overt act she 

now argues justifies the self-defense claims. Her proffered 

testimony focuses on the decedent’s prior acts against Cary, and 

date back to 1984, nearly twenty years prior to the shooting. 

After detailing these prior events, Cary’s trial counsel asked 

Cary what she was “afraid of” when Beekman physically assaulted 

her earlier on the evening of the shooting. Cary’s response 

was, “I was afraid that one day he would just take me out of 

this world because that almost like took me out of here being 

busted in the face and the glass and near the jugular vein.” 

The events Cary recounts here as to what precipitated her fear 

on the evening of the shooting were all events that occurred on 

previous occasions. None of the proffered testimony contends 

Beekman was moving toward Cary to attack her immediately prior 

to the shooting, so as to put Cary in immediate fear of an 

imminent danger of bodily injury or death.2

 

2

 The record shows that prior to the shooting, Beekman used 

the bathroom, which was through the kitchen and down a hall away 

from the living room. The only entry or exit from the apartment 

was a single door in the living room where Cary was sitting. 

Thus, Beekman had to re-enter the living room where Cary was 

sitting at the time of the shooting in order to exit the 

apartment. Beekman could not have fulfilled Cary’s request to 

leave without re-entering the living room in order to reach the 

apartment’s only door. 
33

 Because the record clearly shows that Cary did not argue to 

the trial court that the decedent’s alleged movement toward her 

immediately prior to the shooting was the overt act that placed 

her in imminent danger of immediate harm, Rule 5:25 bars Cary 

from making this argument on appeal as an after-the-fact basis 

to justify the self-defense claims. Based on the record, the 

trial court correctly held that Cary failed to establish the 

existence of an overt act under Sands, and therefore no basis 

existed to warrant any of the self-defense claims. As such, the 

trial court properly denied Cary’s request to introduce evidence 

of Beekman’s past violent conduct and properly refused Cary’s 

proposed jury instructions relating to self-defense and 

accidental self-defense. The Court of Appeals erred in holding 

to the contrary. 

B. The Majority’s Reliance on Jimenez v. Commonwealth

The majority opinion summarily dispenses with the 

Commonwealth's argument that Cary procedurally defaulted her 

argument as to the overt act of self-defense by citing our 

decision in Jimenez v. Commonwealth, 241 Va. 244, 250, 402 

S.E.2d 678, 681 (1991), for the first time in these proceedings. 

The majority does so in support of its holding that "Cary's 

proffer of a correct instruction on the defense of self-defense 

is sufficient to preserve for appeal the question whether the 

trial court erred in refusing that instruction." Upon review of 
34

Jimenez and other decisions of this Court cited therein, I 

cannot agree that those decisions apply in this case. 

In Jimenez, the defendant was indicted for a violation of 

Code § 18.2-200.1, which provides, in pertinent part, that a 

defendant may be guilty of larceny if he "obtain[s] from another 

an advance of money, . . . with fraudulent intent, upon a 

promise to perform construction" and fails either to perform the 

service or return the advance "within fifteen days of a request 

to do so sent by certified mail . . . ." Id. at 247, 402 S.E.2d 

at 679. The trial court failed to instruct the jury that a 

necessary element of the offense that the Commonwealth must 

prove is that the defendant must have received a written 

request. The Commonwealth provided no evidence of such a 

request, but the defendant failed to object to the trial court's 

incomplete instruction. This Court determined that the ends of 

justice exception to Rule 5:25 applied because the jury was not 

instructed as to a material element of the offense charged. Id. 

at 248, 251, 401 S.E.2d at 679, 681-82. We held that 

[t]he granted instruction omitted some essential 

elements of the offense. Likewise, no evidence was 

produced relating to those elements. [The defendant], 

therefore, was convicted of a non-offense. 

Id. at 251, 401 S.E.2d at 681. In reaching our holding in 

Jimenez, we reviewed our prior decisions in Ball v. 

Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981), Bryant v. 
35

Commonwealth, 216 Va. 390, 219 S.E.2d 669 (1975) (per curiam), 

and Whaley v. Commonwealth, 214 Va. 353, 200 S.E.2d 556 (1973). 

Like Jimenez, each of these cases was decided on facts and in a 

procedural posture dissimilar to the case at bar. 

In Ball, the defendant was convicted on an indictment for 

capital murder under former Code § 18.2-31(d) (Supp. 1979): 

"[t]he willful, deliberate and premeditated killing of any 

person in the commission of robbery while armed with a deadly 

weapon." The evidence adduced at trial, however, showed that 

the defendant never consummated the robbery. Thus, the store 

manager was mortally wounded when he tried to wrest the gun from 

the defendant during the commission of an attempted robbery, not 

robbery as charged in the indictment. Id. at 756, 273 S.E.2d at 

791. The defendant failed to object to the capital murder 

instruction as unsupported by the evidence, but we applied the 

ends of justice exception finding, as we did later in Jimenez, 

that the defendant in Ball had been "convicted of a crime of 

which under the evidence he could not properly be found guilty." 

Id. at 758-59, 273 S.E.2d at 793. 

In Bryant, the defendant was convicted of rape and argued 

as his only defense, the consent of the prosecutrix. The trial 

court, however, refused the defendant's proffered instruction on 

consent as a defense and never instructed the jury that lack of 

consent was an element of the crime charged. Id. at 391-92, 219 
36

S.E.2d at 670-71. On appeal, we noted that the evidence was by 

no means conclusive of the defendant's guilt, and we determined 

that while the "trial court [was] not required to amend or 

correct an erroneous instruction, . . . it [was] reversible 

error for the trial court to refuse a defective instruction" 

which "was crucial to [the defendant's] sole defense." Id. at 

393, 219 S.E.2d at 671. Instead, the trial court should have 

"correct[ed] it and giv[en] it in the proper form" because "[a] 

jury should . . . [be] sufficiently informed [of the elements of 

a crime required for a conviction]." Id. at 393, 219 S.E.2d at 

671-72. 

In Whaley, the defendant was convicted of rape. 214 

Va. at 354, 200 S.E.2d at 557. He offered an instruction 

to the trial court that included the presumption of 

innocence, but the trial court rejected the instruction. 

Id. at 355, 200 S.E.2d at 558. The jury was never 

instructed on the presumption of innocence. Id. Citing 

prior decisions of this Court, we agreed that "the accused 

is entitled to an instruction on the presumption of 

innocence, and it is reversible error for the trial court 

to refuse such an instruction when requested." Id. at 355-

56, 200 S.E.2d at 558 (citations omitted). As such, we 

determined that the presumption is a "principle of law 

. . . materially vital to [the criminal] defendant, [and] 
37

it [was] reversible error for the trial court to refuse a 

defective instruction instead of correcting it and giving 

it in the proper form." Id. at 355-56, 200 S.E.2d at 558. 

The case at bar, however, bears little similarity to 

Jimenez or the other cases. Unlike Ball and Jimenez, the 

Commonwealth here met its burden of proof on all the 

elements of the indicted offense. The trial court 

instructed the jury on the necessary elements of the crime 

and did not permit conviction for a non-offense. 

 Unlike the defendants in Bryant and Whaley, Cary did 

not offer an incorrect instruction that the trial court had 

a duty to correct. Cary simply failed to argue to the 

trial court the necessary basis of an overt act for her 

self-defense claims that she later advanced for the first 

time on appeal. Moreover, in distinction from Jimenez and 

the other cited cases, Cary did not just make a different 

argument on appeal, but her argument at trial contradicts

her appellate claim. At risk of again repeating the saga, 

Cary argued at trial that the overt act was the history of 

Beekman’s prior threats and assaults, which she admitted 

did not occur “concomitantly” with the shooting. Yet on 

appeal the overt act transmutes to an onrushing Beekman 

about to bludgeon Cary, necessitating her shot in selfdefense. Neither Jimenez nor any of the other cases turned 
38

on such a diametrically different argument birthed between 

trial and appeal, nor do they contain a trial court 

argument that negates the argument later made on appeal. 

Cary never argued in the Court of Appeals or to this 

Court that the ends of justice exception to Rules 5A:18 or 

5:25 should apply as was the case in Jimenez and Ball. And 

the Court of Appeals never referenced Rules 5A:18 or 5:25 

regarding this issue. There is no basis to do so now. 

 A careful reading of the trial court record shows that 

the “overt act” Cary argued to that court was wholly 

different from that now argued on appeal. After thorough 

review of Cary’s arguments in the trial court, her 

testimony at trial, and even Cary’s briefs to the Court of 

Appeals, I conclude Rule 5:25 bars Cary from arguing on 

appeal that Beekman’s alleged movement toward her at the 

time of the shooting was the overt act justifying her 

action as self-defense. Jimenez cannot operate to recreate 

Cary's self-defense claims argument on appeal. The Court 

of Appeals thus erred in reversing the judgment of the 

trial court based upon Cary's new appellate argument. 

II. THE OTHER CONTESTED INSTRUCTIONS 

In view of the majority opinion’s disposition of the selfdefense claims, it does not address the Commonwealth's fourth 

and fifth assignments of error: that the Court of Appeals erred 
39

in holding that (1) the jury should have been instructed about 

Cary's right to arm, and (2) the failure to instruct on 

voluntary manslaughter was not harmless. As I believe the Court 

of Appeals erred as to the self-defense claims, I address these 

other assignments of error. I find that the trial court did not 

err in either circumstance and would reverse the judgment of the 

Court of Appeals on both points. 

A. Right to Arm Instruction 

 On appeal, the Court of Appeals determined that the 

evidence adduced at trial supported a finding that Cary obtained 

the firearm she used to shoot Beekman 

in preparation for a future deadly attack by the 

victim at three discreet [sic] times – [(1)] when she 

first purchased the firearm; [(2)] when she snatched 

it from her son's hands while the victim was in the 

bathroom and kept it by her side rather than hiding it 

or returning it to its place in her room; and [(3)] 

when she picked it up off the couch and pointed it at 

the victim as he again advanced toward her where she 

sat on the couch. 

 The first reason articulated by the Court of Appeals, 

at the time of purchase, is directly contradicted by Cary's 

trial testimony and is without any support in the record. Cary 

never argued at trial that she obtained the weapon because she 

needed it as protection from Beekman. To the contrary, she 

testified that she purchased the weapon because of a general 

need to protect her children and her home because "[t]here were 

people in the neighborhood breaking into people's houses." Cary 
40

testified that she purchased bullets, but "[n]ot for no real 

intended purposes." 

The Court of Appeals conjured that this testimony of 

generalized need "does not preclude the conclusion that [Cary] 

intended to protect [her family], at least in part, from the 

victim." But our duty to examine the evidence in the light most 

favorable to Cary does not permit us to construct arguments that 

she did not raise at trial. Rule 5:25. Furthermore, this Court 

has consistently held that a right to arm instruction is 

correctly given only when the threat to the defendant's life is 

specific and nearly contemporaneous with the defendant's action 

in arming himself. See, e.g., Jones v. Commonwealth, 187 Va. 

133, 143-44, 45 S.E.2d 908, 912 (1948) (After defendant was 

severely beaten by decedent, and decedent threatened that "he 

would kill the defendant that day" defendant returned home and 

waited with a pistol.). There simply was no evidence in the 

record to support a finding that Cary armed herself by 

purchasing the firearm in order to protect herself from Beekman. 

Furthermore, a careful review of the record reveals that 

that the second and third instances the Court of Appeals recited 

to support an instruction that Cary armed herself "in 

preparation for a future deadly attack" by Beekman, were never 

mentioned by any party at trial or on appeal, and first came to 

pass when written by the Court of Appeals. While Cary did 
41

testify that she took the gun away from her son, she said that 

she did so, not because she needed to arm herself against 

aggression by Beekman, but "because [she] didn't want nobody to 

get hurt or harmed." Cary then removed the magazine from the 

gun as an extra precaution "so that nobody would get hurt 

nowhere." There is no evidence anywhere in the record to 

support the Court of Appeals' determination that Cary took the 

gun from her son in order to arm herself against Beekman. In 

addition, Cary testified that she pointed the gun at Beekman in 

order to scare him and force him to leave. She never testified 

that she drew the gun to protect herself from him as he advanced 

toward her or argued she was entitled to a right to arm 

instruction on that basis. 

In Boggs v. Commonwealth, 199 Va. 478, 100 S.E.2d 766 

(1957), the defendant argued on appeal that the trial court had 

erred in refusing his requested instruction on the right to arm. 

Id. at 488-89, 100 S.E.2d at 774. While admitting that the 

evidence in that case may have supported a theory that the 

defendant armed himself in anticipation of an attack by the 

victim, we noted that according to the record, 

[the defendant] denied that he armed himself because 

he apprehended trouble from [the victim] and denied 

that he was carrying his pistol for any such reason. 

He cannot now complain of the refusal of the 

instruction which is predicated upon the fact that he 

anticipated trouble from [the victim]. 
42

Id. at 489, 100 S.E.2d at 774. 

The Court of Appeals thus erred in determining Cary was 

entitled to a jury instruction on the right to arm because the 

record does not support any of the reasons cited. 

B. Right to Threaten Force Instruction 

Coupled with its analysis regarding Cary’s right to a jury 

instruction on the right to arm in self-defense, the Court of 

Appeals held sua sponte that Cary “was entitled to an 

instruction indicating that the right of self-defense justified 

her merely threatening to use such force.” In so doing, the 

Court of Appeals opined that while Cary’s “proffered selfdefense instruction did not cover this theory, her proffered 

right to arm instruction did.” 

This part of the judgment of the Court of Appeals violates 

the principles embodied in that Court’s Rule 5A:18 and this 

Court’s Rule 5:25 by again deciding an issue not properly 

preserved at trial. It also disregards the plain language of 

the right to arm instruction and wrongly conflates the distinct 

concepts of self-defense and right to arm. As detailed in the 

earlier discussion of Rule 5:25’s applicability to the 

determination of an overt act, Rule 5A:18 and 5:25 prevent 

appellate courts from deciding issues that a party does not 

properly preserve during the trial court proceeding. 
43

Cary did not argue to either the trial court or the Court 

of Appeals that she was entitled to a jury instruction on the 

right to threaten force in self-defense. As such, this issue 

was not before the Court of Appeals. 

Moreover, the Court of Appeals erred in finding that the 

issue had been preserved because Cary did proffer a jury 

instruction regarding the right to arm. The plain language of 

the proffered right to arm instruction states: 

A person who reasonably believes that another intends 

to attack her for the purpose of killing her or doing 

her serious bodily harm has a right to arm herself for 

her own necessary protection. In such a case no 

inference of malice can be drawn from the fact that 

she armed herself. 

Nothing in this language addresses a right to threaten use 

of force. The concepts are separate principles of law, and by 

arguing a right to arm, Cary did not argue a right to threaten 

use of force. 

Consequently, the Court of Appeals erred in holding that 

Cary was entitled to a jury instruction on the right to threaten 

force. 

C. Voluntary Manslaughter Instruction 

 At trial, the jury was instructed on first-degree murder, 

second-degree murder, and involuntary manslaughter. On appeal 

to the Court of Appeals, Cary argued that the trial court erred 
44

in denying her proffered instruction on voluntary manslaughter. 

The Court of Appeals ultimately agreed with Cary, but noted: 

under ordinary circumstances, the jury's conviction of 

appellant for first-degree murder would preclude a 

finding that the court's failure to instruct on 

voluntary manslaughter was reversible error. [In this 

case] voluntary manslaughter was not the only legal 

theory on which the trial court erroneously failed to 

instruct the jury. . . . [I]t failed to instruct on 

self-defense and the right to arm. 

This language indicates that had the Court of Appeals not 

found error on the other issues, it would have found no error in 

the failure to give an instruction on voluntary manslaughter. 

As I do not believe the trial court erred regarding the 

self-defense claims or the right to arm instruction, the jury’s 

verdict of first-degree murder should stand. Therefore, there 

was no error in failing to give a voluntary manslaughter 

instruction. This Court's affirmation of the Court of Appeals' 

decision in Turner v. Commonwealth, 23 Va. App. 270, 476 S.E.2d 

504 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), makes this 

point clear. 

In Turner, the failure to instruct the jury on voluntary 

manslaughter was harmless because the jury had rejected seconddegree murder in reaching its verdict of guilty of first-degree 

murder. By rejecting the lesser-included offense of seconddegree murder, "the jury found beyond a reasonable doubt that 

appellant acted not only maliciously, but also willfully, 
45

deliberately, and premeditatedly." Id. at 277, 476 S.E.2d at 

508. Because "premeditation and reasonable provocation cannot 

co-exist . . . [the jury] necessarily rejected the factual basis 

upon which it might have rendered a verdict on the lesser 

included offense of voluntary manslaughter." Id. at 277-78, 476 

S.E.2d at 508. Thus, as I would find Cary’s first-degree murder 

conviction should stand, the trial court did not err in failing 

to give an instruction on voluntary manslaughter. 

III. CONCLUSION 

Because Cary never argued to the trial court that the overt 

act justifying the self-defense claims was that an advancing 

Beekman forced her to act in self-defense, I would reverse the 

judgment of the Court of Appeals regarding the self-defense 

claims because those are barred under Rule 5:25. I would also 

reverse the Court of Appeals' judgment that the trial court 

erred in refusing Cary's jury instructions on the right to arm 

and voluntary manslaughter for the reasons stated above. 

Consequently, I respectfully dissent from the majority 

opinion and would reverse the judgment of the Court of Appeals 

and affirm the judgment of the trial court.