COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Annunziataand 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

BRYANT LAVAR GAYLES 

 MEMORANDUM OPINION* BY 

v. Record No. 0961-99-2 JUDGE CHARLES H. DUFF 

 MAY 2, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Gregory W. Franklin, Assistant Public 

Defender (David J. Johnson, Public Defender, 

on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Bryant Lavar Gayles, appellant, was convicted of first degree 

murder. On appeal, he argues the trial court erred in refusing to 

give his proposed jury instruction on self-defense. Assuming, 

without deciding, that the failure to give the instruction was 

error, we find the error was harmless. Therefore, we affirm the 

conviction. 

FACTS

 The evidence proved that on the evening of June 21, 1998, 

Robert Kruk was sitting on his front porch when he saw appellant 
and Christopher Henshaw walking along the street toward his 

residence. Appellant and Henshaw were arguing loudly, and at 

one point, they began throwing debris at one another. Kruk and 

Rebecca Swanson, who also saw appellant and Henshaw from her 

third floor balcony, both indicated that neither man hit the 

other with the bottles and bricks they were throwing. The two 

men then began tussling. Swanson heard appellant state to 

Henshaw, "I will cut you for all you did to me, bitch." 

Appellant then retrieved a knife from his duffel bag and fatally 

stabbed Henshaw in the chest. 

 Appellant walked away from Henshaw, toward a nearby 

convenience store. Before reaching the store, an eyewitness saw 

appellant throw a knife over a wall into the courtyard of an 

apartment complex. The police later recovered the knife from 

that location. The police also apprehended appellant shortly 

thereafter, and appellant admitted that he "stabbed the bitch." 

Appellant had splattered blood on his shorts, shoes and legs. 

Officer Preuss reported that appellant laughed about the 

incident, and he showed no remorse, even after hearing that 

Henshaw was dying. Appellant stated, "I told that son of a 

bitch if he fuck[ed] with me again, I'd kill him." Appellant 

also told the police, "It was fun." 

 In an interview with Detective Boswell, appellant 

repeatedly asserted that he had cut Henshaw with a broken 

bottle, and he denied stabbing Henshaw with a knife. However, 

- 2 -
the police found no broken bottle, only some broken glass, at 

the crime scene. Appellant claimed that Henshaw had hit him 

with a brick, but none of the officers who saw appellant noticed 

any injuries on appellant's body. Appellant also asserted that 

he had called 911 earlier that evening after Henshaw threatened 

him. Police records reflected, however, that no 911 calls were 

received that evening from the pay telephones where appellant 

alleged he made the call. 

 At the trial, appellant proffered the following jury 

instruction: 

If you believe that the defendant was 

without fault in provoking or bringing on 

the fight, and if you further believe that 

the defendant reasonably feared, under the 

circumstances as they appeared to him, that 

he was in danger of being killed or that he 

was in danger of great bodily harm, then the 

killing was in self-defense and you shall 

find the defendant not guilty. 

 The trial court refused to give the instruction, and 

appellant appeals that decision. 

ANALYSIS

 Appellant contends that because Henshaw attacked him with a 

brick, then he was entitled to the self-defense instruction. 

Assuming, without deciding, that a self-defense instruction 

should have been given, the trial court's failure to give the 

instruction was harmless error. 

 "[N]on-constitutional error is harmless '[w]hen it plainly

appears from the record and the evidence given at the trial that 

- 3 -
the parties have had a fair trial on the merits and substantial 

justice has been reached.'" Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (citation 

omitted). "[W]here the reviewing court is able to determine 

that the trial court's error in failing to instruct the jury 

could not have affected the verdict, that error is harmless." 

Turner v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 

507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997). 

 Based upon our examination of the record and evidence 

presented in the case, we are satisfied that the failure to give 

a self-defense jury instruction did not affect the verdict or 

otherwise deprive appellant of a fair trial on the merits. The 

evidence of appellant's guilt was overwhelming. Several 

witnesses saw appellant and Henshaw arguing. They heard 

appellant threaten to "cut" Henshaw for "all he did to [him]." 

None of the eyewitnesses saw Henshaw attack appellant with a 

brick, and appellant had no injuries after the incident. During 

the scuffle, appellant took the time to retrieve the knife from 

his duffel bag, then stabbed the unarmed victim. He also 

disposed of the murder weapon, lied about making 911 calls, and 

showed no remorse for Henshaw's death. 

 Furthermore, the trial court instructed the jury on the 

elements of first degree murder, second degree murder, and 

voluntary manslaughter. In his closing argument, appellant 

argued to the jury that he acted in mutual combat, an element of 

- 4 -
voluntary manslaughter. See Wilkins v. Commonwealth, 176 Va. 

580, 583, 11 S.E.2d 653, 654 (1940). However, the jury found 

appellant guilty of first degree murder. Thus, the jury found 

beyond a reasonable doubt that appellant acted maliciously, 

willfully, deliberately and premeditatedly. See Rhodes v. 

Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989). A 

finding of malice excludes a finding of heat of passion. If 

upon being assaulted, "'[the defendant's] resistance with a 

deadly weapon be made in a very cruel manner, not at all 

justified by the nature of the assault, the inference would be 

that malice, not passion, impelled the blow making his crime 

murder.'" Moxley v. Commonwealth, 195 Va. 151, 158, 77 S.E.2d 

389, 393 (1953) (citation omitted). 

 Furthermore, in the context of the failure to give a 

lesser-included offense jury instruction, an error "is harmless 

only where the jury's resolution of disputed facts compels the 

conclusion that it necessarily excluded an alternative 

resolution of fact that would have supported the lesser-included 

offense on which it was not instructed." Turner, 23 Va. App. at 

277, 476 S.E.2d at 508. By convicting appellant of first degree 

murder, the jury necessarily rejected appellant's mutual combat 

theory and necessarily rejected the factual basis which would 

have supported a self-defense claim. See id. at 277-78, 476 

S.E.2d at 508. 

- 5 -
 Accordingly, we affirm appellant's conviction. 

 Affirmed. 

- 6 -