COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Clements 

Argued at Richmond, Virginia 

JERMAINE LEON THURSTON 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1329-07-2 JUDGE LARRY G. ELDER 

SEPTEMBER 30, 2008 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

F. Ward Harkrader, Jr., Judge Designate 

 Deborah C. Wyatt (Wyatt & Associates PLC, on briefs), for 

appellant. 

 Richard B. Smith, Special Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Jermaine Leon Thurston (appellant) appeals from his jury trial conviction for voluntary 

manslaughter. On appeal, he contends the evidence was insufficient to support his conviction 

because it “raised a reasonable doubt of self defense as a matter of law.” We hold the evidence, 

viewed in the light most favorable to the Commonwealth, supported a finding that if appellant 

was entitled to act in self-defense, the amount of force he used was not reasonable in relation to 

the harm threatened. Thus, we affirm his conviction. 

When considering the sufficiency of the evidence on appeal in a criminal case, we view 

the evidence in the light most favorable to the Commonwealth, granting to the evidence all 

reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 

349, 352, 218 S.E.2d 534, 537 (1975). The credibility of a witness, the weight accorded the 

testimony, and the inferences to be drawn from proven facts are matters to be determined by the 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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fact finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). Further, 

the fact finder may accept some parts of a witness’ testimony and reject others. Pugliese v. 

Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). “The fact that a witness makes 

inconsistent statements . . . does not render his testimony . . . unworthy of belief. . . . It is firmly 

imbedded in the law of Virginia that the credibility of a witness who makes inconsistent 

statements on the stand is a question for the jury . . . .” Swanson v. Commonwealth, 8 Va. App. 

376, 378-79, 382 S.E.2d 258, 259 (1989). The jury’s verdict “shall not be set aside unless it 

appears from the evidence that [the verdict] is plainly wrong or without evidence to support it.” 

Code § 8.01-680; Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

 “Self-defense is an affirmative defense . . . , and in making such a plea, a ‘defendant 

implicitly admits the killing was intentional and assumes the burden of introducing evidence . . . 

that raises a reasonable doubt in the minds of the jurors [as to the defendant’s guilt of the 

underlying offense].’” Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001) 

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

“Although undisputed facts may establish self-defense as a matter of law, whether the accused 

establishes that he . . . acted in [self-defense] is generally a question of fact.” Lynn v. 

Commonwealth, 27 Va. App. 336, 353, 499 S.E.2d 1, 9 (1998) (citation omitted). As with any 

determination necessitating factual findings, “[t]he trier of fact determines the weight of the 

evidence in support of a claim of self-defense.” Gardner v. Commonwealth, 3 Va. App. 418, 

426, 350 S.E.2d 229, 233 (1986). 

A claim of self-defense may be classified as “either justifiable or excusable; if it is 

[proved to be] either, the accused is entitled to an acquittal.” Lynn, 27 Va. App. at 353, 499 

S.E.2d at 9. 

Justifiable self-defense arises when the defendant is completely 

without fault. In such a case, the defendant need not retreat, but is 
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permitted to stand his ground and repel the attack by [reasonable] 

force, including deadly force, if it is necessary. Excusable 

self-defense arises when the defendant, who was at some fault in 

precipitating the difficulty, abandons the fight and retreats as far as 

he safely can before he attempts to repel the attack. 

Foote v. Commonwealth, 11 Va. App. 61, 67-68, 396 S.E.2d 851, 855 (1990) (citations omitted) 

(emphasis added). 

 “Whether the danger facing the accused is ‘reasonably apparent’ is determined from the 

viewpoint of the accused at the time [of the shooting]. However, fear alone does not excuse the 

killing; there must be an overt act indicating the victim’s imminent intention to kill or seriously 

harm the accused.” Smith v. Commonwealth, 17 Va. App. 68, 71-72, 435 S.E.2d 414, 416-17 

(1993) (quoting McGhee, 219 Va. at 562, 248 S.E.2d at 810). Once the evidence establishes 

some overt act, prior specific acts of violence committed by the deceased are admissible, whether 

or not the accused knows of them. Randolph v. Commonwealth, 190 Va. 256, 264, 56 S.E.2d 

226, 230 (1949). Prior acts of violence known to the accused are relevant to the reasonableness 

of the accused’s fear. Edwards v. Commonwealth, 10 Va. App. 140, 142, 390 S.E.2d 204, 206 

(1990). If such acts were not known to the accused, their existence is still relevant to prove the 

deceased was the aggressor. See id.

 Finally, 

the law of self-defense is the law of necessity. A person only has 

the privilege to exercise reasonable force to repel the assault. “The 

privilege to use such force is limited by the equally well 

recognized rule that a person ‘shall not, except in extreme cases, 

endanger human life or do great bodily harm.’ . . . [T]he amount 

of force used must be reasonable in relation to the harm 

threatened.” Diffendal v. Commonwealth, 8 Va. App. 417, 421, 

382 S.E.2d 24, 26 (1989) [(citation omitted)]. 

Foote, 11 Va. App. at 69, 396 S.E.2d at 856 (citations omitted) (emphasis added). Thus, a 

person may use deadly force in self-defense only if confronted with deadly force. 
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 A firearm, when used for its intended purpose of expelling a projectile through the means 

of an explosion, Armstrong v. Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002), 

may be found to be a deadly weapon. See Hampton v. Commonwealth, 34 Va. App. 412, 

419-20, 542 S.E.2d 41, 44-45 (2001) (holding that a deadly weapon, as defined by Virginia law, 

is “any object or instrument, not part of the human body, that is likely to cause death or great 

bodily injury because of the manner and under the circumstances in which it is used”). Human 

fists, by contrast, ordinarily are not considered deadly weapons. See Roark v. Commonwealth, 

182 Va. 244, 250, 28 S.E.2d 693, 696 (1944) (“‘[F]ists may not . . . be regarded generally, as a 

deadly weapon; but they become most deadly, by blows . . . applied to vital and delicate parts of 

the body of a defen[s]eless, unresisting man, on the ground’” (quoting M’Whirt’s Case, 44 Va. 

(3 Gratt.) 594, 611 (1846))). 

Here, assuming without deciding appellant was without fault in beginning the altercation 

that took place on South First Street,1 the doctrine of self-defense nevertheless permitted 

appellant to use deadly force against Lamont Reaves only if he reasonably feared that Reaves 

would kill him or cause him serious bodily harm. Here, the evidence supported a finding that the 

degree of force appellant used was not reasonable in relation to the harm threatened by Reaves. 

Reaves expressly threatened appellant only with his fists, not with the baseball bat Reaves had 

displayed earlier at Friendship Court. The record contained no evidence that Reaves mentioned 

the bat or that appellant had any reason to believe Reaves intended to use it or even had it with 

him at South First Street.2

 1

 Because we make this assumption, we need not consider whether the evidence 

compelled the conclusion that appellant attempted to retreat from Lamont Reaves by moving 

toward the “cut” between the residences on South First Street. 

2

 The bat was later found in Te’arra Goins’s Explorer, indicating Reaves took it with him 

when he went from Friendship Court to South First Street, but nothing in the record indicates 
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Further, although Commonwealth’s witness Curtis Glover testified that Reaves 

threatened to “fuck [appellant] up” as Reaves claimed previously to have done to appellant’s 

companion, Omar Miller, Glover admitted appellant was his “best friend,” and the jury was not 

required to accept the portion of Glover’s testimony concerning Reaves’s alleged threat. The 

jury also was not required to accept the testimony of Omar Miller, offered by appellant, that 

Miller had been hospitalized following a fight with Reaves five or six years earlier, while the two 

were in high school. Even if the jury did accept that testimony, Miller admitted on 

cross-examination that he, Miller, threw the first punch in that earlier fight and that the injury he 

sustained resulted when he fell on his shoulder during the fight and not directly as a result of the 

blows Reaves delivered. Miller also admitted that he was not taken from the scene by 

ambulance and that he did not seek medical attention until a week later. Victim Reaves’s 

undisputed disciplinary record for having been involved in one or more fistfights several years 

earlier in high school also did not compel the jury to find, as a matter of law, that appellant could 

reasonably have feared Reaves would kill him or cause him serious bodily harm on the night at 

issue. 

On the undisputed facts, before Reaves had delivered a single blow, appellant responded 

to Reaves’s challenge to fight by discharging his firearm at close range in Reaves’s direction, 

piercing Reaves’s chest and inflicting a fatal injury to his heart and lung. Although appellant’s 

counsel argued no evidence established appellant intended to inflict a fatal wound when he fired 

the fatal shot, which pierced the right rather than left side of Reaves’s chest, the finder of fact 

was entitled to infer appellant intended the natural and probable consequences of his acts. See, 

e.g., Schmitt v. Commonwealth, 262 Va. 127, 145, 547 S.E.2d 186, 198 (2001). The jury was 

 

Reaves mentioned it or displayed it or that appellant had any knowledge that Reaves had brought 

it. Thus, the presence of the bat could not have contributed to appellant’s fear of Reaves. 
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entitled to conclude that the natural and probable consequence of appellant’s act of intentionally 

firing the gun at Reaves at close range was that the shot would cause Reaves’s death. 

 We need not consider whether the evidence in the record, if viewed in the light most 

favorable to appellant, might have supported a finding that Reaves was capable of and likely to 

inflict great bodily harm on appellant with his fists, thereby justifying appellant’s use of deadly 

force in self-defense. The jury, as the finder of fact, was entitled to reject this evidence and to 

conclude the record failed to prove appellant reasonably feared Reaves would kill him or cause 

great bodily harm. 

For these reasons, we hold the evidence, viewed in the light most favorable to the 

Commonwealth, supported a finding that if appellant was entitled to act in self-defense, the 

amount of force he used was not reasonable in relation to the harm threatened. Thus, we affirm 

his conviction. 

Affirmed.