Present: Hassell, C.J., Keenan, Koontz, Lemons, Goodwyn, and 

Millette, JJ., and Carrico, S.J. 

JERRY LYNN COOPER, a/k/a 

GERALD LYNN COOPER 

 OPINION BY 

v. Record No. 080919 SENIOR JUSTICE HARRY L. CARRICO 

 February 27, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Tried by a jury in the Circuit Court of Alleghany County on 

a charge of possession of cocaine with intent to distribute in 

violation of Code § 18.2-248(C), the defendant, Jerry Lynn 

Cooper, also known as Gerald Lynn Cooper, was convicted and his 

sentence was fixed at ten years in the penitentiary and a fine 

of $10,000.00. The circuit court upheld the conviction and 

imposed the ten-year penitentiary sentence but suspended the 

$10,000.00 fine. 

 In an unpublished order, the Court of Appeals affirmed the 

conviction. We granted Cooper an appeal to consider this single 

assignment of error: “That the ruling by the Court of Appeals 

that [Cooper’s] proposed jury instruction concerning alibi was 

not required is erroneous.” Finding that the Court of Appeals’ 

ruling was erroneous, we will reverse its judgment. 

BACKGROUND

 The Commonwealth’s evidence showed that in late 2004, 

Angela Tucker became a paid informant for the Alleghany 

Highlands Drug Task Force of the Virginia State Police. Tucker 
“never had any charges or pending charges” against her but was 

“concerned about the drug problem in [her] area” of the 

Commonwealth and thought she “could help with that.” She was 

paid $100.00 for each drug purchase she made for the police, and 

at the time she testified at Cooper’s trial, she had made sixty 

such purchases. 

 At 3:22 p.m. on April 5, 2006, Tucker told Special Agent 

Eddie Philpot of the Virginia State Police, who was attached to 

the Alleghany Highlands Drug Task Force, that she might “be able 

to purchase some crack cocaine” from Cooper, who happened to be 

her uncle. Special Agent Philpot, accompanied by Detective 

Winfred Smith of the Bath County Sheriff’s Office, who was also 

a member of the Alleghany Highlands Drug Task Force, gave Tucker 

money for the purchase of drugs. After searching her, the 

officers installed “body wire” on her “that broadcasts through a 

frequency through a listening post” placed on the rear seat of 

the police vehicle. 

 Special Agent Philpot and Detective Smith then drove Tucker 

to a location in the City of Covington near Cooper’s residence. 

Tucker left the car, walked to the residence, and found Cooper 

at home. She asked him “if he knew where to get any drugs from, 

well coke.” He replied, “yeah,” but said he had to make a call 

to Boomie, a local “coke dealer.” He talked to Boomie, but 

Boomie “never called back.” At that point, Jap, a friend of 

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Cooper’s, “come up” and “gave [Cooper] a ride.” Before Cooper 

left, Tucker gave him a “hundred dollar bill” she had been given 

by Special Agent Philpot and Detective Smith. 

 Cooper could not get the drugs from Boomie but secured them 

from Van, who had “a reputation for selling drugs . . . in 

Covington.” Cooper returned to Tucker in about ten minutes and 

“gave [her] the drugs.” It was then 4:26 p.m. Cooper departed 

and Tucker immediately turned the drugs over to Detective Smith, 

who was sitting with Special Agent Philpot in their police 

vehicle nearby and from which they had been observing Tucker’s 

movements and listening to her conversations. Upon analysis, 

the drugs proved to be cocaine. 

 In defense, Cooper denied that he had sold drugs to Tucker 

and offered an alibi. He testified and presented testimony from 

other witnesses that between 3:22 p.m. and 4:26 p.m. on April 5, 

2006, he was at work participating in the construction of a pool 

house at a site in Clifton Forge, a town located some distance 

from Covington. Cooper’s employer and two of his co-workers 

stated that his work schedule was 8:00 a.m. to 4:30 p.m. daily 

and that he worked until 4:30 p.m. on April 5, 2006. A witness 

who shares her home with Cooper testified that he left for work 

at 8:00 a.m. on April 5, 2006, and that he was not there when 

she returned home from a meeting about 4:15 p.m., but arrived 

before she left for work at 9:00 p.m. 

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 At the conclusion of the evidence, Cooper proffered 

Instruction A, which was refused by the circuit court. Based 

upon 2 Virginia Model Jury Instructions – Criminal, No. 52.100, 

at 52-3 (repl. ed. 2008), the proffered instruction read as 

follows: 

 The defendant relies upon the defense that he was not 

present at the time and place the alleged offense was 

committed. If, after consideration of all the evidence, 

you have a reasonable doubt that the defendant was present 

at the time and place the alleged offense was committed, 

you shall find him not guilty. 

 The circuit court refused the instruction on the ground it 

was not required because other instructions were granted on 

presumption of innocence, reasonable doubt, and the elements of 

the offense. The Court of Appeals held that because the circuit 

court had granted the other instructions, a “separate 

instruction on alibi was neither necessary nor required, and the 

trial judge did not abuse his discretion in refusing to give 

[Cooper’s] alibi jury instruction.” 

ANALYSIS

 As a general rule, the matter of granting and denying 

instructions does rest in the sound discretion of the trial 

court. See Daniels v. Commonwealth, 275 Va. 460, 466, 657 

S.E.2d 84, 87 (2008); Stockton v. Commonwealth, 227 Va. 124, 

145, 314 S.E.2d 371, 384 (1984). “Our ‘sole responsibility in 

reviewing [jury instructions] is to see that the law has been 

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clearly stated and that the instructions cover all issues which 

the evidence fairly raises.’ ” Molina v. Commonwealth, 272 Va. 

666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher v. 

Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). And in 

deciding whether a particular instruction is appropriate, we 

view the facts in the light most favorable to the proponent of 

the instruction. See Commonwealth v. Cary, 271 Va. 87, 91, 623 

S.E.2d 906, 907 (2006). 

 We have visited the appropriateness of alibi instructions 

in several previous cases starting with Thompson v. 

Commonwealth, 88 Va. 45, 13 S.E. 304 (1891), and find that we 

have expressed a variety of views in the law on the subject. In 

Thompson, involving a charge of robbery, this Court held that it 

was not error to instruct a jury that “the burden of proving the 

alibi rests upon [the accused]” after the accused had been 

granted an instruction telling the jury that the Commonwealth 

“must prove everything essential to the establishment of the 

charge in the indictment to the exclusion of a reasonable 

doubt.” Id. at 47, 13 S.E. at 305. 

 In Draper v. Commonwealth, 132 Va. 648, 111 S.E. 471 

(1922), a prosecution for conspiracy to commit murder, the 

Commonwealth sought and received over defense objection an 

instruction including a statement that “where the accused relies 

upon or attempts to prove an alibi in his defense, the burden of 

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proving the alibi rests upon him.” Id. at 660-61, 111 S.E. at 

475. This Court held that while the statement would constitute 

reversible error standing alone, it did not prejudice the 

defendant because of the language in the remaining portion of 

the instruction and in other instructions that were given on 

presumption of innocence and reasonable doubt. Id. at 665, 111 

S.E. at 476. Two paragraphs from an early encyclopedia of law 

are quoted approvingly in our opinion and are worthy of note. 

The first reads as follows: 

 In 2 Am. & Eng. Enc. (2nd Ed.), page 53, it is said: 

“Alibi is regarded by some courts as an affirmative 

defense, but the better doctrine seems to be that it is not 

a defense in the accurate meaning of the term, but a mere 

fact shown in rebuttal of the State’s evidence; and, 

consequently, the evidence introduced to support it should 

be left to the jury, uninfluenced by any charge from the 

court tending to place it upon a different footing from 

other evidence in the case.” 

Id. at 661, 111 S.E. at 475. The second paragraph is from page 

56 of the encyclopedia and reads as follows: 

 “The true doctrine seems to be that where the State 

has established a prima facie case and the defendant relies 

upon the defense of alibi, the burden is upon him to prove 

it, not beyond a reasonable doubt, nor by a preponderance 

of the evidence, but by such evidence, and to such a degree 

of certainty, as will, when the whole evidence is 

considered, create and leave in the mind of the jury a 

reasonable doubt as to the guilt of the accused.” 

Id. at 663, 111 S.E. at 476. 

 In Fenner v. Commonwealth, 152 Va. 1014, 148 S.E. 821 

(1929), involving a charge of robbery, an instruction was 

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granted containing the same language that was found 

objectionable in Draper, i.e., “where the accused relies upon or 

attempts to prove an alibi in his defense, the burden of proving 

the alibi rests upon him.” Id. at 1018, 148 S.E. at 822. This 

Court criticized the granting of the instruction, stating that 

“[i]t is strange that prosecuting attorneys continue to ask for 

this instruction and trial courts continue to give it.” Id. 

However, the Court held that the instruction could not have 

misled the jury because other instructions told the jury it 

could not convict unless it believed the defendant guilty to the 

exclusion of every reasonable doubt. Id. at 1021, 111 S.E. at 

823. 

 In Mullins v. Commonwealth, 174 Va. 472, 5 S.E.2d 499 

(1939), a prosecution for attempted rape, a refused instruction 

stated as follows: 

The court instructs the jury that the evidence introduced 

by the defendant, that he was not at the scene of the 

alleged crime, need not have been such as to establish this 

as a fact, to entitle him to an acquittal; but if its 

effect has been such as to bring you to that state of mind 

that you have any reasonable doubt of his presence there, 

it is as much your duty to find him not guilty in this 

case, as it would be if you were convinced he was not there 

or was otherwise not guilty. 

Id. at 475, 5 S.E.2d at 500. Reversing for the trial court’s 

failure to grant the instruction, we said: “It is patent that 

the instruction is a correct statement of the law and that the 

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testimony referred to required it to be given to the jury. That 

it was not given is prejudicial error.” Id. 

 In Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241 

(1952), where the defendant was charged with indecent exposure, 

we held that “[i]n so far as the decision in Mullins . . . 

approves the form of the instruction [on alibi], it is 

overruled.” Id. at 248, 72 S.E.2d at 245. We said, “we now 

adhere to the same view” we took in Draper and Fenner, when we 

approved the statement from page 56 of the early encyclopedia of 

law concerning alibi principles. Reversing on other grounds, we 

said that “at a new trial the defendant will be entitled to an 

instruction on alibi which conforms to the principles which we 

have here stated.” Id.

 In Johnson v. Commonwealth, 210 Va. 16, 168 S.E.2d 97 

(1969), a statutory burglary case, we said that “in order to 

require the giving of an instruction on alibi there must be 

evidence that the accused was elsewhere than at the scene of the 

crime at the exact time or for the entire period during which it 

was or could have been committed.” Id. at 20, 168 S.E.2d at 

100. We held that an alibi instruction was properly refused 

because “the evidence offered in support of the defendant’s 

claim of alibi is so lacking in the required proof of his 

absence from the scene at the time of the commission of the 

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crime that the trial court properly refused to grant the 

requested instructions.” Id. 

 In Minor v. Commonwealth, 213 Va. 278, 191 S.E.2d 825 

(1972), the defendant, charged with feloniously and knowingly 

receiving money from the earnings of a female engaged in 

prostitution, was denied an alibi instruction worded in the 

language approved in Mullins but disapproved in Noblett. We 

said that “a separate instruction on alibi was neither necessary 

nor required” because “the jury was fully and completely 

instructed on presumption of innocence and reasonable doubt” and 

was further told that “ ‘if there is any reasonable doubt that 

the accused did knowingly receive such money . . .’ or if they 

had any reasonable doubt of the defendant’s guilt of the crime 

charged against her ‘on the whole case,’ they should acquit 

her.” Id. at 281, 191 S.E.2d at 827. We stated further that 

“to the extent that Mullins and Noblett are in conflict with 

this holding, they are expressly overruled.” Id.

 In Crabbe v. Commonwealth, 221 Va. 419, 270 S.E.2d 727 

(1980), the defendant, on trial for three robberies, was denied 

an alibi instruction similar to the one approved in Mullins and 

disapproved in Noblett. We upheld the denial. Citing Minor, we 

said that “[w]e reaffirm the rule that, when the jury is 

properly instructed on the presumption of innocence and 

reasonable doubt, ‘a separate instruction on alibi [is] neither 

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necessary nor required.’ ” Id. at 421, 270 S.E.2d at 728. 

“Moreover,” we said, “the jurors were told in each of three 

instructions . . . that, in order to convict, they were required 

to find that Crabbe ‘was present, aiding and abetting [his 

accomplice] in the commission of such [crimes].’ ” Id.

Finally, in Bassett v. Commonwealth, 222 Va. 844, 284 

S.E.2d 844 (1981), where the death penalty was imposed for 

murder during the commission of robbery, the trial court granted 

Instruction 2, an alibi instruction in the exact same wording as 

Instruction A, involved here. The defendant complained of the 

instruction on appeal, “arguing that it confused the jury as to 

the standard of proof required to establish an alibi.” Id. at 

856, 284 S.E.2d at 852. We disagreed, stating that “[a] jury 

objectively reading the instruction complained of could not be 

misled, because nowhere does it require proof of alibi beyond a 

reasonable doubt or even by a preponderance of the evidence.” 

Id. at 857, 284 S.E.2d at 852. 

 This brings us to the point of decision. In making our 

decision, we first question the efficacy of this Court’s 

approval in Draper of the statement that “[a]libi . . . is not a 

defense in the accurate meaning of the term, but a mere fact 

shown in rebuttal of the State’s evidence.” 132 Va. at 661, 111 

S.E. at 475. We now hold to the contrary. Black’s Law 

Dictionary (8th ed. 2004) 79 defines the word “alibi” as “[a] 

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defense based on the physical impossibility of a defendant’s 

guilt by placing the defendant in a location other than the 

scene of the crime at the relevant time.” And the same 

dictionary at page 451 defines the word “defense” as “[a] 

defendant’s stated reason why the plaintiff or prosecutor has no 

valid case; esp., a defendant’s answer, denial, or plea <her 

defense was that she was 25 miles from the building at the time 

of the robbery>.” Hence, we will hereafter treat alibi as a 

defense in the accurate meaning of the term. 

 We also question the efficacy of this Court’s approval in 

Draper of the further statement that “the evidence introduced to 

support [an alibi] should be left to the jury uninfluenced by 

any charge from the court tending to place it upon a different 

footing from other evidence in the case.” 132 Va. at 661, 284 

S.E.2d at 475. We now hold to the contrary. Rule 3A:11, which 

deals with discovery and inspection in criminal cases, provides 

in subparagraph (c)(2) as follows: 

(c) Discovery by the Commonwealth.-If the court grants 

relief sought by the accused under clause (ii) of 

subparagraph (b)(1) or under subparagraph (b)(2) of this 

Rule, it shall, upon motion of the Commonwealth, condition 

its order by requiring that: 

. . . . 

 (2) The accused disclose whether he intends to 

introduce evidence to establish an alibi and, if so, that 

the accused disclose the place at which he claims to have 

been at the time of the commission of the alleged offense. 

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Other than insanity or feeblemindedness, Rule 3A:11(c)(3), 

alibi is the only defense that must be disclosed pretrial by the 

accused in a criminal case. Thus, subparagraph (c)(2) has 

placed alibi on a different footing from other evidence in the 

case, and it should be left to the jury in an appropriate 

instruction on the subject, in addition to instructions on 

presumption of innocence and reasonable doubt. 

 Furthermore, in view of our changed consideration of the 

alibi concept, we question the wisdom of continuing our rule 

that the matter of granting or refusing alibi instructions rests 

in the sound discretion of the trial court. Johnson makes clear 

that an alibi instruction should be granted when there is 

“evidence that the accused was elsewhere than at the scene of 

the crime at the exact time or for the entire period during 

which it was or could have been committed.” 210 Va. at 20, 168 

S.E.2d at 100. Yet, as a review of our decisions will reveal, 

alibi instructions have been granted in some cases and refused 

in others when no discernible difference is apparent. 

Eliminating judicial discretion will promote uniformity where 

uniformity is desirable, and it is desirable in this instance. 

Hereafter, the rule will be: grant an alibi instruction when the 

evidence described in Johnson is present, refuse when the 

evidence is absent. 

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CONCLUSION

Cooper’s alibi evidence fully satisfied the Johnson test. 

We approved the wording of Instruction A in Bassett, 222 Va. at 

856-57 n.2, 284 S.E.2d at 852 n.2, and no reason has been 

advanced to require withdrawal of that approval. Accordingly, 

the instruction should have been granted. Because it was 

refused, we will reverse the judgment of the Court of Appeals, 

vacate Cooper’s conviction, and remand the case to the Court of 

Appeals for further remand to the circuit court for a new trial 

with the jury instructed on alibi, provided the evidence remains 

substantially the same, the instruction is in proper form, and 

Cooper requests it. 

Reversed and remanded. 

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