COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Alston and Decker Argued at Richmond, Virginia

DAVID MILLER FRIZZELL MEMORANDUM OPINION  BY v. Record No. 0028-17-3 J UDGE ROSSIE D. ALSTON, JR. JULY 24, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY James J. Reynolds, Judge David B. Hargett (Hargett Law , PLC, on brief), for appellant. Donald E. Jeffrey, III, Senior A ssistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

David Miller Frizzell (“appella nt”) appeals his convictions fo r attempted capital murder and use of a firearm in the c ommission of a felony. Appellant contends that (1) the Circuit Court of Pittsylvania County (“trial c ourt”) erred when it denied app ellant’s motion to suppress; (2) the trial court erred in excludi ng expert testimony about appellant ’s ability to premeditate; and (3) the trial court erred in declining to gi ve three jury instr uctions proffered by a ppellant. For the reasons stated below, we affirm the trial court’s rulings.
B ACKGROUND On October 30, 2015, Deputy Sheriff Jason Woods (“Woods”) was on patrol and received a report regarding sus pected property damage and reckl ess driving by an individual driving a white sport utility ve hicle (“SUV”) at a nearby park. The eyewitnesses who had reported the incident told Woods that they saw the SUV, driven by an older, white male with

 Pursuant to Code § 17.1-413, this op inion is not designated for publication.UNPUBLISHED- 2 - some facial hair, doing “doughnuts” 1 on the grass of the park, cau sing dirt and grass to spew everywhere. Based upon this desc ription, Woods realized he was already familiar with the SUV and its owner, appellant, from an interaction a year earlier. Woods searched for the SUV and observed it parked at a trailer park, with appellant standing b eside it. Woods drove farther down the road and called for backup, but when he returned to the tra iler park a few minutes later, the SUV was gone. Woods drove to the park to inspe ct the damage and observed that the grass area in the park was “tore up pretty bad, as fa r as ruts and tire tracks.” Woods estimated that the property damage exceeded $1,000 and intended to seek an arrest warrant f or appellant for felony destruction of propert y. As Woods drove b ack to his station to speak with a magistrate, he again observed the SUV, which he bega n following. Woods observed a f emale in the driver’s seat, another male in the passenger seat, and appellant in the back s eat. Woods had followed the SUV for a short time when the SUV be gan to pull to the side of the road. Woods activated his emergency lights as he ca me to a stop behind the SUV. Steven Holland, the other male pa ssenger in the vehicle, said that when Woods stopped behind the SUV, appellant “got fi dgety and started to get out.” Appellant exited the SUV and, ignoring Woods’ directives to get back inside, walked around to the driver’s side of the vehicle. Appellant attempted to pull the fe male driver, Juanita Haley (“ Haley”), appellant’s girlfriend, out of the SUV. Haley ran toward Woods and said, “I don’t know wha t’s wrong with him, he’s drunk.” Haley testified that a ppellant had recently become sev erely depressed and that he

1 A “doughnut” is a maneuver in whi ch a driver causes his vehicl e to spin in a continuous 360-degree motion. “Performing this maneuver entail s rotating the rear or front of the vehicle around the opposite set of wheels in a continuous motion, creat ing (ideally) a circ ular skid-mark pattern of rubber on a roadwa y and possibly even causing the ti res to emit smoke from [the] friction.” See Doughnut (driving) , https://en.wik ipedia.org/wi ki/Doughnut_(driving) (last visited June 27, 2018). It is commonly performed by NASCAR drivers fol lowing a victory.- 3 - consumed heavy amounts of alc ohol on a daily basis. Haley furt her stated that on the date of the incident, appellant had consume d an entire bottle of Jim Beam w hiskey and had also smoked marijuana. Woods ordered appellant to step a way from the SUV. Appellant turned to look at Woods and started walking toward him. Woods noticed that appellant h ad bloodshot eyes and a “blank look on his face.” Woods drew his taser and pointed it at appe llant, ordering him to stop walking. Appellant did not compl y, and after several more comm ands, when appellant was about six feet away from Woods , Woods tased him. Appellant “te nsed up” and started backing up toward the SUV, but then put his hand into his left pocket w hile stating, “Jason, you’ve done fucked up now.” Woods dropped his taser and drew his gun, orde ring appellant t o remove his hand approximately five times . Appellant quickly pulled a gun from his pocket and fired it at Woods. Woods fired four shots i n response. Appellant was stru ck once in the leg but did not appear to notice. Other officers arrived at the s cene and approached appellant, observing that he had “a thousand-yard stare” before tasing him again and ultimately pla cing him under arrest. After being handcuffed, appellant rem arked, “[c]an you please take th e damn probes out of my back.” Woods testified that he informe d an officer at the scene that h e thought appellant had shot him and that appellant, overhearing, then stated “[o]h, you’re not hit, you’re fine.” Appellant was transported to the hospital for treatment for hi s leg wound. While at the hospital, Special Agent Matthew Wade (“Wad e”) of the Virginia S tate Police interviewed appellant. Wade testified that as they left the hospital and a ppellant was placed in a vehicle for transport to the jail, appella nt “dropped his head and said, ‘I ’ll never see the light of day again.’” At the conclusion of the Commonw ealth’s evidence, appellant ma de a motion to strike, arguing that the evidence did not establish that he could have acted with premeditation or- 4 - deliberation due to his intoxica ted state. The Commonwealth re sponded that appellant had demonstrated the capability t o premeditate both through his awa reness that the SUV had stopped, which became evident when he rem oved Haley from the car, and th rough his statements during the course of the encounter s howing that he knew what was happe ning and who was involved. The trial court denied the mo tion to strike, reasoning that “t he evidence, if believed, could support a verdict of atte mpted capital murder . . . [beca use] premeditation need not exist for any particular length of time.” In his case-in-chief, appellant called Dr. Frank Russell (“Russ ell”) as an expert witness in clinical psychology, to offer an opinion on the effect of alcoh ol and marijuana on appellant’s ability to premeditate. Russell admitted that he had never tes tified about that particular subject, but stated that he is a mental health expert and often performs competency evaluations on criminal defendants. The trial court allowed Russell to testif y that alcohol and marijuana can potentially affect a person’s abi lity to premeditate. However, Russell had partially based his testimony on out-of-court statem ents by appellant. The trial c ourt asked Russell if he could “exorcise [sic]” appellant’s s tatements from his opinion, inqui ring “[i]n other words, is it possible for you to formulate an opinion without relying on the information provided by [ appellant] ?” Russell stated, “[n]ot who lly.” Based on Russell’s respons e, the trial court precluded Russell from opining on a ppellant’s specific mental s tate. After appellant rested his cas e and during the jury instruction s phase of the trial, the trial court granted several standard i nstructions addressing the pres umption of innocence, the reasonable doubt standard, and c harging that appellant had no b urden to produce any evidence. The parties disagreed on three in structions that are now at iss ue in this appeal: Instruction 21, the voluntary i ntoxication instruction, Instruc tion 14, the premeditation instruction, and an imperfect s elf-defense instruction.- 5 - Instruction 21 state d, in pertinent part: If you find that the defendant w as so greatly intoxicated by th e voluntary use of alcohol that he w as incapable of deliberating or premeditating, then you cannot find him guilty of any offense greater than attempted second degree murder. Appellant proffered an alternativ e (“Refused Instruction A”) wh ich read: If, at the time of the a ttempted homicide, [a ppellant’s] state of mind was caused by voluntary intoxication or other factors , and was such that a reasonable doubt exists as to his having acted deliberately and with premeditation, you cannot find him guilty of any offense greater than second degree murder. (Emphasis added). Instruction 14, the premed itation instruction, read: “Willful, deliberate and premeditated” means a specific intent to kill, adopted at some time before the killing, but which need n ot exist for any particular length of time. Appellant’s proffered alternative instruction (“R efused Instruc tion B”) added this language as a second paragraph: For the attempt to kill to be w illfull [sic], deliberate, and premeditated, it is necessary that it should have been done on purpose, and not by accident, or without design; that [a ppellant] must have reflected with a view to determine whether he would kill or not; and that he must have determined to kill as a resu lt of that reflection before he does th e act-that is to say, the atte mpt to kill must be a premeditated attempt to kill on consideration. Finally, appellant’s proffered i mperfect self-defense instruct ion (“Refused Instruction E”) provided, in relevant part: (3) That [appellant] was the initial aggressor in the conflict but began the conflict without malice ; and (4) That [it] appeared to [appellant] that it was necessary to attempt to kill Jason Woods in order to save himself from death or great bodily harm; and (5) That [appellant’s] belief was reasonabl e in that the circumstances as they then appeared to him were sufficient to- 6 - create a belief of death or great bodily harm in the mind of a reasonable person. (Emphasis added). The trial court denied each of appellant’s proposed instructio ns, concluding that the principles stated therein were in some instances an incorrect s tatement of the law and in other instances were encompassed by Co mmonwealth’s Instructions 21 an d 14. The jury found appellant guilty of attempted cap ital murder and use of a firea rm while in the commission of a felony. This appeal followed.
A NALYSIS I. The trial court did not err in deny ing appellant’s motion to suppress. “Upon review of the [trial] cour t’s denial of a suppression mot ion, ‘the burden is upon [appellant] to show that the ru ling, when the evidence is consi dered most favorably to the Commonwealth, constituted reversi ble error.’” Hill v. Commonwe alth, 68 Va. App. 610, 616-17, 812 S.E.2d 452, 455 (2018) (quoting Andrews v. Commonwe alth, 37 Va. App. 479, 488, 559 S.E.2d 401, 406 (2002)). This is not to be confused with t he principle that the government bears the burden of proof at tr ial that the evidence should not be suppressed. United States v. McGee, 736 F.3d 263, 269 (4th Cir. 2013); United States v. Keho e, No. 17-4536, 2018 U.S. App. LEXIS 16624, at *8 ( 4th Cir. June 20, 2018). “A claim by a defendant that he w as seized within the contempla tion of the Fourth Amendment ‘presents a mixed que stion of law and fact that is re viewed de novo on appeal.’” Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 ( 2002) (quoting McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 (2001)). “ Whether a seizure has occurred for Fourth Amendment purposes depends upon whether, un der the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave.” McGee v. Commonwealth, 25 Va. App. 193, 199-200, 487 S.E.2d 259 , 262 (1997) ( en banc )- 7 - (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). “In considering a claim of seizure, ‘[this Court] is requi red to give deference to the fac tual findings of the trial court and to determine independently whether , under the law, the manner in w hich the evidence was obtained satisfies constitutional requirements.’” Bolden, 263 Va. at 47 0, 561 S.E.2d at 704 (quoting McCain, 261 Va. at 490, 545 S.E.2d at 545). Appellant contends that the tr ial court erred in denying his mo tion to suppress, asserting that because Woods lacked reasonab le, articulable suspicion to initiate a traffic stop, all the evidence obtained thereafter—appe llant’s statements, the firearm, and the deputies’ other observations—was inadmissible. We disagree. This Court need not engage in an ext ensive analysis of whether the encounter constituted a lawful traffic “stop” 2 because the interaction between Woods and the SUV’s occupants began consensually, and appellant was not actually “seized” until wel l after he had committed serious criminal acts. “The determina tion whether an encounter is cons ensual or is an illegal seizure in violation of a defendant’s Fourt h Amendment rights is not governed by a ‘litmus test,’ and requires consideration of all th e circumstances surrounding the encounter.” Jones v. Commonwealth, 279 Va. 521, 528, 690 S.E.2d 95, 99 (2010) (citat ions omitted). “Law enforcement officers may approach a citizen in public places an d engage in consensual encounters involving questioning of the citizen, if the citizen is willing to listen, without violating the Fourth Amendme nt’s prohibition of unreasonable se izures.” Id. (citing United States v. Drayton, 536 U.S. 194, 200 ( 2002)). “[T]his Court mu st consider what appellant ‘actually did in response to the police officer’s show of autho rity’ and when appellant actually

2 “[S]topping an automobile and det aining its occupants constitu te a ‘seizure’ within the meaning of [the Fourth and Fourt eenth] Amendments, even though the purpose of the stop is limited.” Delaware v. Prous e, 448 U.S. 648, 653 (1979) (citati ons omitted). Appellant characterized the encounter as a “stop” throughout his brief, b ut the Court does not agree for the reasons set forth in our analysis.- 8 - submitted to [the officer’s] show of aut hority in order to determine whe n appellant was seized for Fourth Amendment purposes.” Beasley v. Commonwealth, 60 Va. Ap p. 381, 392, 728 S.E.2d 499, 504 (2012) (quoting Woodson v. Commonwealth, 245 Va. 401, 405, 429 S.E.2d 27, 29 (1993)) (emphasis in original). Whether this incident is couche d as a consensual encounter or a s a traffic stop does nothing to assist appellant from a Fourth Amendment perspective

. Once Woods pulled behind the SUV, Haley, who was driving, v oluntarily pulled to the side of the road before Woods had activated his lights. At that point, appellant exited the vehi cle and attempted to forcibly remove Haley from the vehicle so that he could get into the driver’s s eat and presumably drive away. After Woods ordered appellant t o stop these actions, appellant walked towards Woods and continued to advance despite sev eral directives from Woods, ult imately requiring Woods to use his taser. After being tased, a ppellant put his hand in his po cket and said, “Jason, you’ve done fucked up now” before pulling out a gun and firing multiple sho ts at Woods. Neither Haley nor appellant ever submitted to Woods’ authority to the extent required under the Fourth Amendment. The e ntire encounter began consens ually when Haley, the driver of the vehicle, pulled over the SUV voluntarily, and the situat ion was immediately and exponentially escalated through appe llant’s subsequent actions. Though Woods had activated the lights on his cruiser afte r Haley pulled over, no seizure h ad yet occurred. See Jones, 279 Va. at 528, 690 S.E.2d at 99 (stating that “a consideration of all the circumstances surrounding the encounter” should be implemented ). This is not a case in which an individual simply submitted to an officer’s authority by pulling over in response to lights or sirens, or exited a vehicle following a directive from tha t officer. Instead, appellant go t out of the SUV before Woods had even exited his cruiser, appe llant physically accosted Haley, and appellant then became involved in the firefight with Woods. A ppellant was only eventually sei zed when other officers arrived at- 9 - the scene of the incident, tased him again, and placed him unde r arrest. See Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 4 (1983) (“The co nsensual encounter becomes a seizure ‘[o]nly when the o fficer, by means of physical force or show of authority, has in some way restrained the liberty of acitizen.’”). Appellant’s liber ty had not been restrained at the time of his criminal acts, thus the F ourth Amendment was not implica ted because he had not been seized. See Bolden, 263 Va. at 470, 561 S.E.2d at 704. 3 Additionally, we recognize that “[a]n officer may effect a s eizure by arrest . . . when he has probable cause to believe t hat the person seized has commit ted or is committing a criminal offense.” Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2 d 645, 647 (1992) (citing Dunaway v. New York, 442 U.S . 200, 207-09 (1979)). Here, Woods spoke to multiple witnesses who told him that they saw a white SUV, driven by an individual matching appellant’s description, doing “doughnuts” and tearing up the grass in the park. Woods was already familiar with appellant and the SUV from an interaction a year earlier. Shortly after speaking with the witnesses, Woods observed the S UV and saw appellant standing ne xt to it. By that point, as the trial court so found, Woods had s ufficient reason to believe th at appellant’s SUV was the same vehicle that caused the property damage because it was in the a rea shortly after the incident was reported. Moreover, Woods also personally observed the property damage, and the tri al court correctly concluded that “officers [have an] ability to make a gut determination that th e damage in question is in excess of $1000.”

3 Additionally, “if a person engage s in new and distinct crimina l acts during an allegedly unlawful police encounter, ‘the exclusionary rule does not appl y, and evidence of the events constituting the new criminal activity, including testimony des cribing the defendant’s own actions, is admissible.’” Te sta v. Commonwealth, 55 Va. App. 2 75, 283, 685 S.E.2d 213, 216-17 (2009) (quoting Brown v. Cit y of Danville, 44 Va. App. 586, 600 , 606 S.E.2d 523, 530 (2004)). Serious criminal acts were committed by appellant after Woods b egan interacting with him. Thus, even if the Fourth Amend ment had been implicated during t he encounter, the exclusionary rule would not apply.- 10 - Accordingly, the Court finds tha t the trial court did not err i n denying appellant’s motion to suppress. II. The trial court did not err in excluding ce rtain testimony from appe llant’s expert witness

. “Generally, we review a trial court’s decision to admit or excl ude evidence using an abuse of discretion standard.” Avent v. Commonwealth, 279 Va. 175, 197, 688 S.E.2d 244, 256 (2010) (quoting John Crane, Inc. v. Jones, 274 Va. 581, 590, 65 0 S.E.2d 851, 855 (2007)). “This standard, if nothing else, means th at the trial [court’s] ‘ruli ng will not be reversed simply because an appellate court disagrees.’ ” Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E. 2d 870 (2005) (quoting Henry J. Friendly, Indiscretion A bout Discretion, 31 Emory L.J. 747, 754 (1982)). “Only when reasonable jurists could not di ffer can we say an abuse of disc retion has occurred.” Id. “Generally, an out-of-court stat ement by a criminal defendant, if relevant, is admissible as an exception to the hearsay rule when offered by the prosecution because it constitutes an admission of a party.” King v. Commonwealth, 18 Va. App. 57, 5 9, 441 S.E.2d 704, 705 (1994) (emphasis added) (citing Ala tishe v. Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82 (1991)). “[W]hen proffered by the party who made the statement , such a statement is generally not admissible.” Id. (cit ing Tyree v. Lariew, 208 Va. 382, 385 , 158 S.E.2d 140, 143 (1967)). Here, the out-of-court statemen ts by appellant were not offered by the prosecution but rather by appellant himself. Appe llant endeavored to elicit an expert opinion from Russell regarding appellant’s mental st ate at the time of the encounter . When the issue arose, the trial court asked Russell if he could r ender an opinion without appel lant’s statements. The trial court specifically inquired, “[i]n other words, is it possible for yo u to formulate an opinion without relying on the information provided by [ appellant] ?” Russell then candidly responded, “[n]ot wholly.” Because appellant’s ex pert witness admitted to the tr ial court that he could not render- 11 - an opinion without relying, at least in some part, upon out-of- court hearsay statements from appellant, Russell’s opinion on appellant’s specific mental state was rendered inadmissible. Thus, the trial court did not a buse its discreti on in excluding Russell’s opinion regarding appellant.
III. The trial court did not err in rejecti ng appellant’s proposed jury instructions

. “A trial court’s decision whethe r to grant or refuse a proposed jury instruction is generally subject to appellate rev iew for abuse of discretion.” Howsare v. Commonwealth, 293 Va. 439, 443, 799 S.E.2d 512, 514-15 (2017). “In deciding whether an instruction was appropriate, the appellate court views the facts in the light m ost favorable to the instruction’s proponent.” Id. (citing Cooper v. Commonwealth, 277 Va. 377, 3 81, 673 S.E.2d 185, 187 (2009)). “Only when reasonable jurists could not differ can [t his Court] say an abuse of discretion has occurred.” T homas, 44 Va. App. at 753, 607 S.E. 2d at 743. “A reviewing court’s responsibil ity in reviewing jury instructi ons is ‘to see that the law has been clearly stated and that the instructions cover all iss ues which the evidence fairly raises.’” Darnell v. Co mmonwealth, 6 Va. App. 485, 488, 370 S. E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982 )). “Instructions to juries . . . should be succinct and clear—l eaving nothing unsaid which needs to be said, while saying no more than necessary.” Kenne more v. Commonwealth, 50 Va. App. 7 03, 712, 653 S.E.2d 606, 610 (2007). “An instruction accur ately stating the law is none theless improperly given if it is ‘inapplicable to the f acts and circumstances of the case.’” Ju niper v. Commonwealth, 271 Va. 362, 418, 626 S.E.2d 383, 419 (2006) (quoting Hatcher v. Common wealth, 218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978)).- 12 - A. Instruction 21 First, appellant challenges I nstruction 21, the voluntary intox ication instruction, which stated, in pertinent part: If you find that the defendant w as so greatly intoxicated by th e voluntary use of alcohol that he w as incapable of deliberating or premeditating, then you cannot find him guilty of any offense greater than attempted second degree murder. Appellant’s Refused Instruction A read: If, at the time of the attempted homicide, [ appellant’s] state of mind was caused by voluntary intoxication or other factors , and was such that a reasonable doubt exists as to his having acted deliberately and with premeditation, you cannot find him guilty of any offense greater than second degree murder. (Emphasis added). On brief, appellant primarily ar gues that Instruction 21 shifte d the burden of proof from the Commonwealth to him. “[T]he Du e Process Clause requires th e prosecution to ‘prove beyond a reasonable doubt every f act necessary to constitute th e crime charged.’” Hodge v. Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 695 (1976) (quo ting Mullaney v. Wilbur, 421 U.S. 684, 685 (1975), and citing In re Winship, 397 U.S. 35 8 (1970)). “The burden of proof is always upon the Commonwealth, and this burden never shifts .” Id. at 342, 228 S.E.2d at 695 (emphasis in original). When this Court conducts a “revi ew of the propriety of a partic ular instruction, [the Court] look[s] to the instructions as a whole.” Graves v. Comm onwealth, 65 Va. App. 702, 707, 780 S.E.2d 904, 906 (2016) (citations omitted). Here, Instruct ion 1 offered by the- 13 - Commonwealth addressed the pres umption of innocence, the reason able doubt standard, and explicitly provided t hat “[t]here is n o burden on [appellant] t o produce any evidence.” 4 Moreover, contrary to appellant ’s suggestion, Instruction 21 do es not contain the burden-shifting criteria of which appellant com plains. In this regard it is no ted that other model jury instructions in Virginia that actually cont ain burden-shifting language are not comparable to Instruction 21. For example, Instruction No. 53.100 provides that “ the defendant must prove by the greater weight of the evidence that he was insane when the crime was co mmitted.” (Emphasis added). Next, we note that Refused Instr uction A was improper because o f the added language “or other factors.” The Commonw ealth is correct that there is no authority supporting the argument that the phrase “or othe r factors,” as it modifies or augments a voluntary intoxication instruction, has any basis in l aw. Trial courts have a continu ing duty to avoid creating confusion when instructing a jury, with t he ultimate goal of fostering an organic and efficient trajectory of discussion within the deliberation proceedings. See Dowdy v. C ommonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979) (“[A] correct statement of the law applicable to the case, when the law is stated . . . [is one of t he] essentials of a fair tr ial[.]” (quoting Limbaugh v.

4 In totality, Instruction 1 provides: [Appellant] is presumed to be innocent. You should not assume [appellant] is guilty because he has been indicted and is on tr ial. This presumption of innocence remains with [appellant] throughout the trial and is e nough to require you to find [appe llant] not guilty unless and until the Commonwealth proves each and every element of the offense beyond a reasonable doubt. This d oes not require proof beyond all possible doubt, nor is the Commonwealth required to di sprove every conceivable circumstance of innocence. Howev er, suspicion or probability o f guilt is not enough for a conviction. There is no burden on [appellant] to produce any evidence. A reasonable doubt is a doubt ba sed on your sound judgment afte r a full and impartial considera tion of all the evidence in the c ase.- 14 - Commonwealth, 149 Va. 383, 400, 140 S.E. 133, 138 (1927))). A muddled legal definition of voluntary intoxication would have r un afoul of that interest. Appellant alternatively contends that the trial court should ha ve simply struck “or other factors” from the instruction, be cause “when [a] principle of l aw is vital[,]” a tr ial court has an affirmative duty to properly ins truct a jury. Bryant v. Common wealth, 216 Va. 390, 393, 219 S.E.2d 669, 671 (1975). This additiona l assertion by appellant is nullified because without the “or other causes” phrase, the onl y remaining material differenc e in appellant’s proffered instruction was that it also incorporated the reasonable doubt standard, which the trial court had already addressed in Instruct ion 1. See Graves, 65 Va. App. at707, 780 S.E.2d at 906. For those reasons, the trial c ourt did not err in granting Instruction 21 and denying Refused Instruction A.
B. Instruction 14 Next, appellant asserts that the trial court erred in granting Instruction 14, the premeditation instruction, which read: “Willful, deliberate and premeditated” means a specific intent to kill, adopted at some time before the killing, but which need n ot exist for any particular length of time. Appellant’s Refused Instructi on B added a second paragraph, whi ch stated: For the attempt to kill to be w illfull [sic], deliberate, and premeditated, it is necessary that it should have been done on purpose, and not by accident, or without design; that [ appellant] must have reflected with a view to determine whether he would kill or not; and that he must have determined to kill as a resu lt of that reflection before he does th e act-that is to say, the atte mpt to kill must be a premeditated attempt to kill on consideration. Again, we find no error. Although Ref used Instruction B contai ned a correct statement of law, see Pannil v. Commonwealth, 185 Va. 244, 255, 38 S.E.2d 45 7, 463 (1947), our inquiry into the propriety of the trial cour t’s actions does not end there.- 15 - “The trial court’s ‘broad di scretion in givi ng or denying instr uctions requested’ is reviewed for an abuse of discre tion.” Witherow v. Commonwealth , 65 Va. App. 557, 565, 779 S.E.2d 223, 227 (2015) (quoting Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) ( en banc )). The trial court granted Ins truction 14 which contained a f ar more concise, refined, and succinc t definition of premeditation. Th e Court cannot conclude that the trial court abused its discret ion when it granted an instructio n that included a correct statement of law. Appellant even conceded tha t the substance of Refused Ins truction B was subsumed within Instruction 14. Moreover, Refused Instruction B was likely to cause confusion w ith the jury due to the multiple factual qualifications t hat it required for a finding of premeditation. “Even if we assume that the trial court’s sole bas is for refusing to give the prop osed instruction was that it was not a ‘model instruction,’ that does not constitute reversible error. ” Vay v. Commonwealth, 67 Va. App. 236, 255 n.3, 795 S.E.2d 495, 504 n.3 (2017). Thus, the trial court did not err in rejecting Refused Instruct ion B.
C. Imperfect Self-Defense Finally, appellant asserts that the trial court erred in refusi ng to give Refused Instruction E. Appellant contends that he ha d a reasonable belief that for ce was necessary to defend himself from Woods. We disagr ee and find no error. “A defendant is entitled to ha ve the jury instructed only on th ose theories of the case that are supported by the evidence.” Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986) (citations omitted). “The evidence to support an instru ction ‘must be more than a scintilla.’” Id. As a matter of Virginia law, imp erfect self-defense is not avai lable to negate the element of malice. See Jackson v . Commonwealth, 98 Va. 845, 848, 36 S. E. 487, 488 (1900). However,- 16 - we note that appellant did not see k Refused Instruction E for t hat reason. Refused Instruction E stated that appellant must have “began the conflict without mal ice” for it to apply. Nevertheless, appellant did not point to any supporting facts that entitled him to an imperfect self-defense instruc tion. The evidence established that Woods repeatedly attempted using peaceful means to restrai n appellant, and only resorted t o using force when appellant became hostile. Woods testified that he used his taser because he feared appellant may attack Haley or him, as appellant was non-compliant during the entire encounter and continuously escalated the tension. At tria l, appellant did not testify, pr ecluding the jury from hearing directly from him about any suggestion of f ear that he had, and appellan t did not identify any pertinent testimony from the other witne sses supporting Refused Instructi on E. Thus, there was not more than a scintilla of evidence necessary to support the theory th at appellant’s actions constituted imperfect self-defense. Accordingly, appellant fell far short of the standard required for a jury instruction, and the trial court did not err i n denying Refused Instruction E.
C ONCLUSION The trial court did not err i n denying appellant’s motion to s uppress, as no evidence supported his assertion that his F ourth Amendment rights were v iolated. Nor did the trial court err in precluding appellant’s e xpert witness from testifying ab out appellant’s specific mental state, because the proffered t estimony was based upon hearsay s tatements. Finally, the trial court did not err in rejecting appellant ’s proposed jury instructions for the various reasons stated above. Affirmed.