COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Al ston and Senior Judge Haley Argued at Richmond, Virginia
JODI J. HOPE MEMORANDUM OPINION  BY v. Record No. 0176-15-2 JUDGE ROSSIE D. ALSTON, JR. JANUARY 24, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge Designate Joan J. Burroughs (Law Offices of Sara M. Gaborik, on brief), for appellant. Virginia B. Theisen, Senior Assi stant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Jodi J. Hope (appellant) a ppeals her convictions of one c ount of second-degree murder in violation of Code § 18.2-32, one count of aggrav ated malicious wounding in violation of Code § 18.2-51.2, and two counts of use of a firearm in the commission of a felony in violation of Code § 18.2-53.1. Stated briefly, appellant argues in her four assignments of error that the trial court erred in failing to instruct th e jury as to appellant’s self-def ense claim in regard to one of the victims and also by failing to allow testim ony about the entirety of a telephone conversation appellant had following her poli ce interview. We disagree w ith appellant, and affirm the decision of the trial court.

 Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - Background On April 5, 2014 around 5:20 p.m., Shawne Cotten was in an altercati on with Dorsey and Antonio Harris at Southside Plaza in the city of Richmond. The verbal altercation quickly escalated when Dorsey took out a knife and threaten ed to slash Cotten’s face. At appellant’s jury trial, Cotten testified that Antonio “said some thing” and when Cotten turned around, Dorsey hit Cotten “from the side.” Dorsey then slashed all four tires on Co tten’s vehicle. Cotten had his car towed from the parking lot and while his vehicle was in the tire shop, he went to his mother’s house. During that time, Cotten explai ned to his mother what occurred. Angie Martin, Cotten’s mother, testified that after Cotten left her home she called appellant, who was Cotten’s girlfriend, assumi ng Cotten had already told her about the altercation. Martin ended up expl aining to appellant what happened. Cotten testified that around 7:30 p.m. or 7:45 p.m. he spoke with appellant and told her that everything was okay, but, he did not discuss any specifics about th e incident with her. Cotten st ated that when he got off the telephone with appellant, she was going to pick up a salad at Dante’s, which Cotten had ordered earlier but never picked up due to the altercation. In her defense, appellant testified that th e only reason she left the hospital, where she worked, early on April 5, 2014, was for health reas ons. On cross-examination, appellant denied telling her supervisor that her husband had been stabbed. Appellant admitted that she kept a gun in the glove compartment of her truck for protec tion as she frequently walked from her parking spot to the hospital in the dark. Appellant tes tified that she was unaware that Martin was also going to Southside Plaza until Martin came up behind her at Dante’s. Martin testified that she went to Southsid e Plaza because she was concerned about her son given the altercation that occurred earlier. Martin testified that she was waiting with- 3 - appellant at Dante’s for the salad and then they both went to appellant’s truck. Shortly after, Martin went back toward Dante’s, which is when she heard two men talking about someone. Martin testified that at this point she realized that the two men were Dorsey and Antonio. Appellant testified that she exited her truck when she saw Martin begin to back up as the Harris brothers approached her. Martin stated that the brothers sa id Cotten “was soft, and [that] he was a mama’s boy, a pretty boy.” Appellant also stated that the Martin brothers had said that Cotten sent his mother and his gi rlfriend out there “to do his dirt y work.” Appellant overheard what they were saying about Cotten, which is wh en she realized who the Harris brothers were. During the trial, the Commonwealth played a video showing Dorsey, Antonio, Martin, and appellant in a conversation. In this video Martin confronted th e Harris brothers when she heard them talking about Cotten. Dorsey testified that it was then that appellant asked whether Dorsey slashed Cotten’s tires and he admitted to doing so. Cotten testified that around that same time he went back to Southside Plaza to get his salad but saw the Harris brothers and decided to keep dr iving instead of conf ronting them again. At some point thereafter, Cotten heard “loud voices, arguing, [and] ma le voices” over his telephone Bluetooth connection with appellant. Shortly after, Cotten went back to Southside Plaza. Cotten stated that he parked his car and ushered his mother and appellant away from that area, telling Dorsey, after Dorsey had taken his knife out again, that there was nothing to talk about. At that point, Cotten beli eved that the incident had subsid ed and he left with his friend who had accompanied him. Martin testified that they all eventually started walking back to their respective cars, but that the Harr is brothers started threatening appellant and Martin. Martin stated that one of the brothers was walking to wards them, with his hand in his pocket, when appellant started shooting her gun.- 4 - Cotten testified that his Bluetooth was still on after he left Southside Plaza and he “heard a commotion,” in which he heard Dorsey make se veral threats, and then he heard gunshots. Dorsey, on the other hand, testified that Marti n, appellant, Antonio, a nd he exchanged a “few more words” and then he and Antonio started walk ing toward Antonio’s car. Dorsey denied that anyone used curse words and also denied displa ying a weapon. Dorsey stated that he heard gunshots when he was about halfway back to the van but that he did not turn around until the fourth or fifth shot. Dorsey reiterated thatboth he and Antonio were walking away from appellant and Martin when appellan t shot the gun. He further test ified that Antonio did not have a weapon in either hand when he was shot a nd that both men were shot from behind. On cross-examination, appellant did not recall seeing anything in e ither Dorsey’s or Antonio’s hands, but mentioned that Dorsey’s right hand was in his pocket. Appellant further admitted that no one pointed a gun or knife at her, Martin, or Cotten at this time. Dorsey indicated that he was shot in the arm but that after Antonio fell bac k, he never got up. Deputy Warner Hutchinson, an off-duty police officer who was at Southside Plaza at the time of the incident, testified that he did not see any weapon on or nearby Antonio’s body. Jonathan Davis testified that he drove to Southside Plaza on the night of the incident to pick up a pizza from Dante’s. Upon driving up he overheard “something about somebody being slapped” and “something about a kn ife.” Davis testified that a ppellant was the most animated and angry out of the group. On cross-examination, Davis admitted telling a detective that he heard appellant yell at Antonio to “get out of her circumferen ce.” Davis further stated that appellant seemed to be “fishing” for the confront ation to continue, but was “definitely concerned with her space.”- 5 - Dr. Kevin Whaley, the assistant chief me dical examiner at the central office in Richmond, performed the autopsy on Antonio. He te stified that he identi fied five bullet wounds on Antonio’s body. Four of which were non-lethal: two entered the latera l side of his right buttock, one entered his back, and one entered hi s hand. The lethal shot was to the back of Antonio’s neck. Dr. Whaley testified that Antoni o’s wounds were all consis tent with being shot from behind. Appellant testified that sh e recalled speaking to Cotten on the telephone from jail the night of the shooting and the following night but she did not recall encour aging Cotten to have Martin say that the Harris brot hers were coming at her when she fired the gun, nor did she remember asking what Martin told the police. On re-direct examination, appellant sought to read the entire transcript of he r telephone conversation with Cotten into the record. The Commonwealth objected, ar guing that it was self-serving hear say. Appellant argued that the Commonwealth “opened the door” by asking questions about th e conversation on cross-examination. The Commonwealth also we nt into one portion of a statement which appellant argued allowed her to di scuss the entirety of that same statement. The trial court sustained the objection and did not allow appell ant to read the entire transcript of her conversation with Cotten to the jury. Appellant, however, read the entire conversation into the record to preserve her objecti on to the trial court’s ruling. Detective Gregory Russell testified for the Commonwealth in rebuttal and stated that when appellant called Cotten from jail she said to him: “I didn’t see that. So maybe if [Martin] can tell them, you know, he ran up on us and that he had a knife, um, that’ll help.” At the end of the Commonwealth’s rebuttal case, appellant moved to re-open the case to allow appellant to play the entire jail conversation. The trial court again denied the motion but noted that it listened- 6 - to the tape and parts of it were unintelligible and that those were the tapes the Commonwealth had and provided to appellant. While discussing jury instru ctions, appellant offered a se lf-defense instruction which read: If you believe that [appellant] wa s to some degree at fault in provoking or bringing on the diffi culty, that you fu rther believe that number one, [appellant] retreated as far as she safely could under the circumstances in a good faith attempt to abandon the fight; and number two, [appellant] made known her desire for peace by word or act; and number three, [appellant] reasonably feared under the circumstances as they appeared to her that she was in imminent danger of bod ily harm; and number four, [appellant] used no more force under the circumstances as they appeared to her than was reasona bly necessary to protect herself from the perceived harm, that sh e acted in self-defense and you shall find [appellant] not guilty. Appellant offered another inst ruction for self-defense neces sity and an instruction for self-defense without fault. Lastly, ap pellant offered the following instruction: if you believe that [appellant] reasonably believed under the circumstances, as they appeared to her, that [appellant] was without fault in provoking or bringing on the altercation and that [appellant, Martin, Cotten], or others connected to [appellant] . . . were in danger of being killed or of some great bodily harm, then the shooting by [appellant] was in self-defense . . . and you shoul d find [appellant] not guilty. The Commonwealth objected to “any instruct ions that reference[d] the defense of self-defense . . . [as appell ant] ha[d] not brought forth a prima facie case of self-defense.” Appellant responded that this wa s a classic case of self-defense where “on several occasions [appellant] feared for her life.” Additionally, the Harris brothers made several deadly threats, took a couple of steps toward appellant, and one of the brothers reached into his pocket while coming towards her.- 7 - The trial court instructed the jury on self-def ense as to the shooting of Dorsey Harris, but not as to the killing of Antonio Harris. Du ring closing argument, bot h the Commonwealth and appellant referred to self-defense with resp ect to the shooting gene rally. After closing arguments, the trial court therefore instructed th e jury that it may consider self-defense for Dorsey but not Antonio. After the jury retired to delib erate, appellant moved for a mistrial based on the trial court’s sua sponte decision to instruct the jury th at it may not consider self-defense with respect to the shooting of Antonio Harris. Appellant argued that she should be entitled to the self-defense instruction as to both Harris brothers as they were “acting in concert.” The trial court denied the motion under the authorit y of Commonwealth v. Sands, 262 Va. 724, 553 S.E.2d 733 (2001), stating the present case was missi ng “an overt act that would put a person in imminent fear of harm [which would allow a tr ial c]ourt to give a self -defense instruction.” After deliberating, the jury found appellant guilty of murder in the second degree, aggravated malicious wounding, an d two counts of use of a firearm in the commission of a felony. The jury recommended forty-eight years for the four convictions, and the trial court imposed that recommendation at se ntencing. This appeal followed.- 8 - Analysis I. The trial court did not err in only giving a self-defense instruct ion as to Dorsey Harris, nor did the trial court err in giving a follow-up instruction to the jury. 1 “A reviewing court’s responsibil ity in reviewing jury instruct ions is ‘to see that the law has been clearly stated and that the instructi ons cover all issues which the evidence fairly raises.’” Darnell v. Commonwealth, 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)). “Although the Commonwealth prevailed at trial, the appropriate standard of revi ew requires that we view the evidence with respect to the refu sed instruction in the light mo st favorable to [appellant].” Boone v. Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992). In spite of this deference to appellant, “[t]he [t rial court] has broad discretion in giving or denying instructions requested.” Gaines v. Commonwealt h, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) ( en banc ) (citations omitted). “When granted instructions fully and fairly cover a principle of law, a trial court does not abuse its discretion in refusi ng another instruction re lating to the same legal principle.” Id. (quoting Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984)); see also Graham v. Commonwealth, 31 Va. App. 662, 674, 525 S.E.2d 567, 573 (2000). “The trial judge has broad disc retion in giving or denying instru ctions requested.” Gaines, 39 Va. App. at 568, 574 S.E.2d at 778 (quoting John L. Costello, Virginia Criminal Law and Procedure § 60.6-8, at 810 (2d ed. 19 95)). “[W]hen a principle of la w is vital to a defendant in a

1 Appellant concedes that there is no rejected jury instructi on in the record for the Court to consider. This is because appellant offered one set of se lf-defense jury instructions, anticipating that they would appl y to the shootings of both Antoni o and Dorsey Harris. Once the instructions were offered and argum ent given, the trial court edited them to specify that they only applied to appellant’s shooting of Dorsey Harris. Thus, the “rejecte d” self-defense instruction as to Antonio Harris was, as understood by all par ties, the same language as the self-defense instructions that ultimately only applied to Dors ey Harris. We therefore find that the alleged error was sufficiently preserved and presented to this Court for consideration on the merits.- 9 - criminal case; a trial court has an affirmative dut y properly to instruct a jury about the matter.” Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). A defendant is entitled to have the jury instructed only on those theories of the case that are suppor ted by [more than a scintilla of] evidence. The weight of the credib le evidence that will amount to more than a mere scintilla . . . is a matter to be resolved on a case-by-case basis by assessing the evidence in support of a proposition against the other credible evidence that negates it. If a proffered instruction finds any support in credible evidence, however, its refusal is reversible error. King v. Commonwealth, 64 Va. App. 580, 587, 770 S.E.2d 214, 218 (2015) (citations omitted). “Self-defense is an affirmative defense to a charge of murder.” Sands, 262 Va. at 729, 553 S.E.2d at 736. The “bare fear” of serious bodily injury, or even death, however well-grounded, will not justify the taking of hu man life. Stoneman v. Commonwealth, 66 Va. 887, 895 (1874). “There must [also] be some overtact indicative of im minent danger at the time.” Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E. 775, 776 (1935). In other words, a defendant “must wait” until some overt act is done or until “the danger becomes imminent.” Id. at 652, 178 S.E. at 777 (citation omitted) We find no error in the trial c ourt’s decision to only instruct the jury on self-defense with respect to the shooting of Dorsey and not Antonio Harris. All of the evid ence suggested that the only person (other than appellant) who had any kind of weapon on his person, who brandished a weapon, who said anything threatening, or who walk ed toward appellant with his hand in his pocket, provoking concern that a weapon may be in hand, was Dorsey Harris. The only evidence supporting appellant’s contention th at Antonio Harris threatened he r and caused her to fear for her life was appellant’s testimony that Antonio moved toward appellant at the same time as Dorsey, immediately prior to the shooting. Howeve r, walking toward someone, in and of itself, is not sufficient to justify a self-defense instru ction. No other evidence suggested that Antonio- 10 - Harris had threatened appellant verbally or bran dished a weapon toward anyone. Because all of the evidence supporting appe llant’s contention that she feared for her life and believed that she was being approached with a w eapon related to Dorsey’s, and not Antonio’s, words and actions, we agree with the trial court that a self-defense instruction was only appropriate for the shooting of Dorsey Harris. Further, we find no error with the trial cour t’s decision to provide a clarifying instruction to the jury after closing argument given that both the Commonwealth and appellant addressed self-defense generally with resp ect to the shooting w ithin their closing st atements. The trial court noted that it only instruct ed the jury on self-defense as to the shooting of Dorsey and indicated that both parties may have confused the jury by providing argument contrary to the instructions of the trial court. As such, the trial court’s instruction simply clarified for the jury that it may consider self-defense as to Dorsey but not Antonio. A trial judge has broad discretion when conducting a trial, including when jury inst ructions are decided upon and read to the jury. See Justus v. Commonwealth, 222 Va. 667, 677, 283 S.E.2d 905, 910 (1981). Given that the trial court’s job concerning jury instructions is to ensure that the law is clearly stated to the jury, the court providing clarification, in this case, did not constitute an abuse of discretion. See Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009). As discussed above, we agree with the trial court’s decision not to instruct the jury on self-defense as to Antonio and because closing arguments may have conflicted with the jury’s actual instructions, the trial cour t did not err in ensuring that the jury correctly understood the context in which it could c onsider appellant’s affirmativ e defense of self-defense.- 11 - II. The trial court did not err by refusi ng to allow appellant to introduce the entirety of her telephone conversatio n with Cotten following her arrest. A. Evidentiary Issues Appellant presents two assignments of error challenging the trial court’s refusal to allow appellant to (1) question appellan t on re-direct examination about the entirety of her telephone conversation with Cotten after parts of it were discussed on cross-examination, and (2) re-open her case and present testimony about the entirety of appellant’s telephone conversation to Cotten immediately after her police interv iew. We disagree with appellant ’s arguments and find that the trial court did not abuse its discre tion when it refused to allow appe llant to present the entirety of the telephone conversation to the jury even though the Commonwealth excerpted two statements from the conversation. When reviewing the admissibility of evidence, we apply an abuse of discretion standard. Thomas v. Commonwealth, 279 Va. 131, 168, 688 S.E.2d 220, 240 (2010). When using this standard “we do not substitute our judgment for that of the trial court. Rather, we consider only whether the record fairly supports the trial court’s action.” Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997)). When an out-of-court statement made by a de fendant is offered into evidence by the defendant it is inadmissible hearsay unless it falls under a hearsay exception. King v. Commonwealth, 18 Va. App. 57, 58, 441 S.E.2d 704, 704 ( 1994). If the statement is offered as evidence by the prosecution, the statement is admissi ble as a party admission. Id. In this case, appellant tried to have her entire telephone convers ation with Cotten read to the jury, first during her re-direct examination and then again thr ough Detective Russell, who questioned appellant and overheard the conversation. However, the tr anscript of the telephone conversation did not- 12 - fall within an exception to the hearsay rule. A defendant may introduce his or her own prior consistent statements when the prosecution sugg ests that the defendant has a motive to falsify, alleges that the defendant’s testimony is a re cent fabrication, or attempts to impeach the defendant with a prior inconsistent statemen t. Id. at 59, 441 S.E.2d at 705. Because the Commonwealth did not allege ormake any such suggestions, the trial court did not err by prohibiting appellant from reading the entire transcript of the telephone convers ation to the jury. Similarly to the trial court in King, the trial court in this cas e found that while the prosecution asked about specific parts of the telephone conve rsation on appellant’s cr oss-examination, these actions did not fall under an exception to the hearsay rule. See id. at 60, 441 S.E.2d at 705. Appellant relies on the case of Jones v. Commonwealth, 50 Va . App. 437, 605 S.E.2d 859 (2007), to support her argument that she should have been allowed to read her entire conversation with Cotten to the jury. However, this case can be distinguished from Jones because in Jones the prosecution used the out-o f-court statements to impeach the appellant, opening the door, and thereby allowing appellant to enter the rest of his statements into evidence. See id. at 452, 605 S.E.2d at 866. In this case , the Commonwealth did not use appellant’s statements during the telephone conversation wi th Cotten for impeachment purposes. Thus, appellant was not allowed to enter the entire transcript into evidence as in Jones. See id. We find that the trial court did not abuse its discretion by prohibiting appellant from presenting the full transcript of her telephone co nversation with Cotten to the jury. Thus, the trial court’s decision is affirmed.- 13 - B. Harmless Error Appellant further argues that any error of the trial was not harmless. Even assuming without deciding that the trial court erred in pr ohibiting appellant from pr esenting the entirety of the transcript, this error constituted non-constitutional harmless error. “In a non-constitutional context, we review a tr ial court’s rulings on whether to admit or exclude evidence under an abus e of discretion standard.” Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 267 (2015). “We will not reverse a trial court for evidentiary errors that were harmless to the ultimate result.” Shifflett v. Commonwealth, 289 Va. 10, 12, 766 S.E.2d 906, 908 (2015). The test for non-constitutional harmless er ror under Code § 8.01-678, as adopted by the Supreme Court of Virginia, provides: If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whol e, that the judgment was not substantially swayed by the error, itis impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand. Clay v. Commonwealth, 263 Va. 253, 260, 546 S.E .2d 728, 731-32 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). The code section “puts a limitation on the powers of this court to revers e the judgment of the tria l court--a limitation which we must consider on every application for an appeal and on the hearing of every case submitted to our judgment.” Kirby v. Commonwealth, 50 Va. App. 681, 699, 653 S.E.2d 600, 604 (2007) (quoting Walker v. Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926)). On this issue, error, if any, on the part of the trial court was harmless. The jury heard evidence regarding appellant’s statements to po lice and select statemen ts of the telephone- 14 - conversation. These conversations would not have added anything to what the jury already knew and would not have influenced the verdict. If anything, knowledge of the contents of this conversation would have negatively impacted appellant’s case because within these conversations appellant asks Cotten to talk to the police and mentions how she only told the police the “minimum” amount of information. It is clear from the record and the evidence presented that appellant had a fair trial on the me rits and substantial justice was reached in this case. See Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06, 407 S.E.2d 910, 911 (1991) ( en banc ). Based on the standard by which we review non-constitutional harmless error issues, which is even lower than the standard for cons titutional harmless error is sues, we find that any error in this case was harmless. Conclusion We hold that the trial court did not err in failing to instruct the jury on appellant’s claim of self-defense as it pertained to the murder of Antonio Harris as there was no evidence to show the need for such instruction. As such, we fi nd that the trial court di d not err in issuing a sua sponte instruction to the jury that it may only consider the affirmativ e defense of self-defense for Dorsey, and not Antonio Harris. Further, the tria l court did not abuse its discretion in refusing to allow the entirety of the telephon e conversation between appellantand Cotten into evidence nor did the trial court err in not al lowing appellant to re-open her case to present such evidence. Assuming without deciding that a ny error occurred, such error was harmless error. Thus, we affirm the findings of the trial court. Affirmed.