COURT OF APPEALS OF VIRGINIA

Present: Judges Russell, Athey and Senior Judge Frank Argued at Hampton, Virginia

TYRESE SENTELL WARREN MEMORANDUM OPINION * BY v. Record No. 0931

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- 1 JUDGE CLIFFORD L. ATHEY, JR. MARCH 15, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Bryant L. Sugg , Judge ( Chad G. Dorsk , on brief

) , for appellant. Appellant submitting on brief.
Justin B. Hill , Assistant Attorney General (Mark R. Herring 1 , Attorney General, on brief) , for appellee.
Following a bench trial , the appellant, Tyrese Sentell Warren (“Warren”) was convicted of
the aggravated malicious wounding of Tiondra Shaw (“Tiondra”) , in violation of Code § 18.2

- 5 1.2 , and sentenced to thirty years of incarceration with fifteen years suspended. 2 On appeal, Warren
contends that the trial court erred by finding the evidence sufficient to prove malice and rejecting his
claim of self

- defense

. For the reasons that follow, we affirm the trial court.
B ACKGROUND “In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.

1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.

2 The trial court dismissed a related charge of unlawfully shoot ing , stab bing , cut ting or wound ing another in the commission of a felony. UNPUBLISHED- 2

-

Commonwealth , 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth , 292 Va. 380, 381 (2016)). In doing so, we discard any of appellant’s conflicting evidence, and regard as true all
credible evidence favorable to the Commonwealth and all inferences that may reasonably be
drawn from that evidence. Id. at 473.
On March 21, 2019, Warren was visiting the home of his girlfriend, Jasmine Shaw (“Jasmine”), when her niece, Tiondra, a rrived to discover the couple arguing in the front yard

. Tiond ra passed the feuding couple as she carried a bottle of wine into Jasmine’s home

. The quarrel escalated as Warren and Jasmine continued their altercation in the home’s front doorway.
Jasmine attempted to prevent Warren from entering the home by “slam [min g] the door in his
face , ” but he “kicked [it] open” to find Tiondra standing in the kitchen holding the wine bottle

. Warren approached Tiondra , asking, “What are you going to do with that bottle?” Tiondra dropped the bottle , and it shattered on the floor as Warren attempted to seize it as he and Tiondra “tussl [ed] ” in the hallway

. The altercation moved back to the front yard where Warren threw
Tiondra into a bush

. When Tiondra climbed out of the bush , she saw Warren “standing over” Jasmine , repeatedly punching her as she lay on the ground

. Tiondra feared for her aunt’s safety but
believed that she could not defend her “by hitting [ Warren ] ” because he was “strong enough to throw [ her ]” and had physically overwhelm ed Jasmine, who was “three ti mes ” Tiondra’s size. Consequently, Tiondra retrieved a knife from the kitchen and returned to confront Warren ,

“ pointing ” the knife toward him while warn ing him to “ get back .”
Warren wrested control of the knife from Tiondra by grabbing its blade , which cut his
thumb as Tiondra tugged the knife backward in a failed effort to retain possession

. After Warren seized the knife, Tiondra backed away from him with her arms raised, declaring, “ Okay, okay

. . . [Y] ou got it , y ou got it.” Nevertheless, Warren pursued Tiondra , restrained her hands- 3

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and thrust the knife into the left side of her abdomen

. As Tiondra collapsed to the ground , Warren apologized, stating that “he didn’t mean to

. ” Warren then left the scene as Jasmine
called 911

. Jasmine told Officer Christopher Heard that Warren “stabbed [Tiondra] and ran off.” Tiondra also told police that Warren stabbed her, although she initially denied knowing who was responsible.
Paramedic s transported Tiondra to the hospital for emergency treatment of a “life threatening stab wound.” Hemorrhaging blood , Tiondra was hospitalized and underwent two surgeries to save her life. She suffered permanent , visible scarring of her abdomen , damaged internal organs, impaired bowel function, loss of employment, and a miscarriage. Following his arrest, Warren admitted that he was involved in “an altercation ” with
Tiondra and Jasmine

. He claimed , however, that Tiondra threatened him with a glass bottle by “turn[ing] [it] in an aggressive manner” in her hand and “ flip[ing] her wrist back .” He asserted
that he and Tiondra struggled for control of the bottle, “push ing and shoving ” each other until it
broke on the floor , and he confessed to “putting his hands on ” Jasmine. Nevertheless, Warren
maintained that Tiondra “threaten[ ed ] him with [a] knife” while he and Jasmine were “tussling”
outside and that he cut his hand while seizing possession of the weapon
. Warren reenac ted the
incident to illustrate his claim that , after he seized control of the knife, Tiondra inadvertently ran into the blade as he maneuvered to avoid her oncoming charge. Warren ’s injuries, which he
claimed were due to the incident, included a laceration on his left thumb and “faint mark[s]” on
his stomach and cheek. At trial, Tiondra admitted that she had consumed alcohol shortly before the incident and
had lied to police during the investigation. She testified that, at the time of altercatio n , she had just returned from a party in Williamsburg where she drank “a glass of wine” while sharing a
bottle with Jasmine

. Tiondra admitted that she was upset during the fight when Warren broke- 4

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her “last bottle of wine” but denied that she ever “held th e bottle up in an aggressive manner to
intim i date [ him ].” Tiondra also acknowledged that she had lied to police about whether she
knew her attacker . She explained that she had feared Jasmine would “get in trouble” because
Warren was her boyfriend and “ Ja smine wasn’t supposed to have anybody in her house.” Testifying for the defense, Jasmine claimed that she, Tiondra, and Warren were drinking together before the night degenerated into violence

. Jasmine asserted that Warren became “upset” after they returned home, and , at some point , she “pu n ched him and he pushed [her].”
Jasmine claimed that she and Tiondra tried to “push [] [ Warren ] out the [front] door , ” but he “grabbed [Jasmine’s] ponytail” and “pulled [her] to the ground.” Jasmine de nied that Warren ever punched her, claiming that he merely stood over her as she lay on the ground, “holding [her]
hair and .

. . talking a whole bunch of junk.” Jasmine further testified that she saw Warren “ jump
back ” in surprise as Tiondra “came runnin g out the house with the knife ,” “ pok[ ing] it around.”
She claimed that she “tried to separate [Warren and Tiondra ],” but “[Warren] grabbed the knife
and cut his hand and then [Tiondra] charged and he did what he did .” Jasmine also claimed that
she told Warren to flee before police arrived . Jasmine admitted, however, that she was in a romantic relationship with Warren , both at the time of the incident and during the trial

. Moreover, she admitted that she maintained communication with Warren while he was in custody pending trial and had tried to secure his release on bail

. Warren, impeached by his criminal record, denied stabbing Tiondra or possessing the
knife

. He maintained that, as he argued with Jasmine, he found Tiondra behind him with her ar m raised, holding a bottle as if she was intending to hit him in the head. Warren also claimed that
he asked Tiondra three times what she was going to do with the bottle before he “knocked the bottle out of her hand.” He also contended that a fterward, Ja smine followed him outside and punched him in the face, prompting him to pull her to the ground by her hair and stand over her

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Warren claimed that Tiondra actually stabbed him, appearing “ out of nowhere” with a
knife to deliver “four [or] five pokes” to his midsection. He denied that he cut his hand by grabbing the blade ; rather, h e asserted that Tiondra cut his left cheek and thumb as he raised his
hand to defend knife strikes

. In addition, Warren testified that Tiondra charg ed and “tried to hit [him] again with the knife.” Finally, Warren claimed that he “smacked [Tiondra’s] hand” as she charged with the knife , causing the blade to point toward her abdomen, and as he tripped
backward during the charge , Tiondra impal ed hersel f on the blade as she fell on top of him

. At the conclusion of the evidence , the trial court found the evidence of Warren’s guilt “overwhelming” and convicted him of aggravated malicious wounding

. This appeal follows.
A NALYSIS Warren contends that the trial court erred by finding that the evidence was sufficient to prove that he acted with malice and not in the heat of passion . In the alternative, he argues that the
trial court erred by rejecting his claim of self

- defense

. “When reviewing the suff iciency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’” Smith v. Commonwealth , 296 Va. 450, 460 (2018) (quoting Commonwealth v. Perkins , 295 Va. 323, 327 (2018)) (alteration in original). “In such cases, ‘[t]he Court does not ask itself whether
it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Secret v.
Commonwealth , 296 Va. 204, 228 (2018) (alteration in original) (quoting Pijor v. Commonwealth , 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth , 291 Va . 232, 248 (2016) (quoting Williams v. Commonwealth , 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the- 6

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finder of fact at the trial.’” Chavez v. Commonwealth , 69 Va. App. 149, 161 (2018) (quoting Banks
v. Commonwealth , 67 Va. App. 273, 288 (2017)).
A conviction for aggravated malicious wounding require s proof beyond a reasonable doubt
that the accused acted maliciously

. Code § 18.2

- 51.2. Malice is “the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will.” Watson

- Scott v.
Commonwealth , 298 Va. 251, 255

- 56 (2019) (quoting Dawkins v. Commonwealth , 186 Va. 55, 61 (1947)). It “is evidenced either when the accused acted with a sedate, deliberate mind, and formed design, or committed a purposeful and cruel act without any or without great provocation.”
Williams v. Commonwealth , 64 Va. App. 240 , 249 (2015) (quoting Robertson v. Commonwealth , 31
Va

. App. 814, 823 (2000) ). “[M]alice may be either express or implied by conduct.” Watson

- Scott , 298 Va. at 256 (citing Essex v. Commonwealth , 228 Va. 273, 280 (1984)). “Implied malice may be inferred from ‘conduct likely to cause death or great bodily harm, willfully or purposefully
undertaken , ’” Palmer v. Commonwealth , 71 Va. App. 225, 237 (2019) (quoting Canipe v.
Commonwealth , 25 Va. App. 629, 642 (1997) ), i ncluding “the deliberate use of a deadly weapon , ”
Williams , 64 Va. App. at 251 (citing Avent v. Commonwealth , 279 Va. 175 , 202 (2010) )

. “ Whether an accused acted with malice is generally a question of fact and may be proved by circumstantial evidence.” Palmer , 71 Va. App. at 237 (citing Canipe , 25 Va. App. at 642 ). Nonetheless, “[d]eliberate and purposeful acts may

. . . be done without ma lice if they are done in the heat of passion.” Witherow v. Commonwealth , 65 Va. App. 557, 567 (2015) (citing
Williams , 64 Va. App. at 249 ) ; see Dandridge v. Commonwealth , 72 Va. App. 669, 681 (2021) (“Malice and heat of passion are mutually exclusive

. ” ( q uoting Canipe , 25 Va. App. at 643 ) )

. “Heat of passion refers to the furor brevis which renders a man deaf to the voice of reason.” Id. (quoting
Woods v. Commonwealth , 66 Va. App. 123 , 131 (2016))

. “Heat of passion is determined by the nature and degree of the provocation, ” Barrett v. Commonwealth , 231 Va. 102, 106 (1986) , and- 7

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“excludes malice when provocation reasonably produces fear [or anger] that causes one to act on impulse without conscious reflection.” Dandridge , 72 Va. App. at 681

. “As a general rule, whether provocation, shown by credible evidence, is sufficient to” establish that a defendant acted in the heat of passion “is a question of fact.” Woods , 66 Va. App. at 131

- 32.
The record amply supports the trial court’s finding that Warren acted with malice and not in the heat of passion

. The evidence, viewed in the light most favorable to the Commonwealth , demonstrates that Warren pur sued and stabbed an unarmed woman with a deadly weapon as she was retreating from him with her arms raised in surrender

. From that evidence alone , the trial court
could rationally conclude that Warren acted maliciously

. See Shifflett v. Commonwealth , 221 Va. 191, 195 (1980) (affirming conviction for malicious wounding where defendant restrained unarmed victim’s hands behind her back and stabbed her with a knife without provocation); Hughes v.
Commonwealth , 39 Va. App. 448, 463 (2002) (imp uting malice to defendant who stabbed unarmed victim with a knife). A fter deliver ing a near - fatal stab to Tiondra’s unprotected abdomen , Warren withdrew the knife, ignored Tiondra’s pleas for help, and fled the scene

. Thus, the evidence
demonstrated that his actions were conscious and deliberate , not the product of one who was “deaf to the voice of reason.” Williams , 64 Va. App. at 249. Although Warren argues for another version of events, “ [d] etermining the credibility of
witnesses .

. . is within the exclusive province of the [fact finder], which has the unique opportunity to observe the demeanor of the witnesses as they testify.” Dalton v. Commonwealth , 64 Va. App. 512, 525 (2015) ( second alteration in original) (quoting Lea v. Common wealth , 16 Va. App. 300, 304 (1993)). “[T]he conclusions of the fact finder on issues of witness credibility may be disturbed on appeal only when we find that the witness’ testimony was ‘inherently incredible, or so contrary to human experience as to rend er it unworthy of belief.’” Ragsdale v. Commonwealth , 38 Va. App. 421, 429 (2002) (quoting Ashby v. Commonwealth , 33 Va. App. 540, 548 (2000)).- 8

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The trial court rationally credited Tiondra’s testimony that Warren was the primary
aggressor and stabbed he r without provocation

. Tiondra testified that Warren forcefully entered the home, violently accosted her in the kitchen, threw her into a bush, and brutally attacked Jasmine as she lay defenseless on the ground

. Moreover, when Tiondra attempted to defend Jasmine by brandishing the knife, Warren disarmed her and ignored her pleas of surrender before mercilessly stabbing her abdomen

. Because the trial court’s credibility determination was neither plainly wrong nor without evidentiary su pport, we will not disturb it on appeal.
Warren also argues that the trial court erred in rejecting his claim of self

- defense. He contends that he was “not the aggressor” but rather the victim compelled him to “protect himself.” Again, we disagree. “Self

- defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about [his] guilt.” Hughes , 39 Va. App. at 464 (quoting Smith v. Commonwealth , 17 Va. App. 68, 71 (1993)). “ Whether an accused proves circumstances sufficient to create a reasonable doubt that he acted in self

- defense is a question of
fact. ” Bell v. Commonwealth , 66 Va. App. 479, 486 (2016) (quoting Smith , 17 Va. App. at 71). “To establish a claim of self

- defense, a defendant must show that he reasonably feared death or serious bodily harm at the hands of his victim.” Hines v. Commonwealth , 292 Va. 674, 679 (2016) (citing McGhee v. Commonwealth , 219 Va. 560, 562 (1978) )

. “Whether the danger is reasonably apparent is judged from the viewpoint of the defendant at the time of the incident. ”
Id

. “The defendant must also show that he was in imminent danger of harm, that is, a showing of
an overt act or other circumstance that affords an immediate threat to sa fety.” Id. (citing Commonwealth v. Cary , 271 Va. 87, 99 (2006)). A defendant who reasonably fears imminent bodily harm “ is privileged to exercise reasonable force to repel the assault .” Diffendal v.
Commonwealth , 8 Va. App. 417, 421 (1989 ).- 9

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The right t o exercise lethal force in self

- defense, however, is subject to careful limitation. Indeed, “ t he right to use deadly force in self

- defense ‘ begins where the necessity begins and ends
where it ends. ’ ” Couture v. Commonwealth , 51 Va. App. 239, 251 (2008) ( quoting Thomason v.
Commonwealth , 178 Va. 489, 498 (1941)). Moreover , “the amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat.” Foster
v. Commonwealth , 13 Va. App. 380, 383 (1991) ; see Diffendal , 8 Va. App. at 421 (holding that a
person “ shall not, except in e xtreme cases, endanger human life or do great bodily harm

. ” ( quoting Montgomery v. Commonwealth , 98 Va. 840, 843 (1900) ) ). Furthermore, “ the necessity relied upon must not arise out of defendant’s own misconduct.” Hughes , 39 Va. App. at 464 ( quoting McGh ee , 219 Va. at 562). Thus, “[w]hen the accused is free from fault in bringing on the fray, [he] ‘need not retreat, but is permitted to stand his ground and repel the attack by force, including deadly force, if it is necessary.’” Gilbert v.
Commonwealth , 28 Va. App. 466, 472 (1998) (quoting Foote v. Commonwealth , 11 Va. App. 61, 67 (1990)). By contrast, where the accused is “in some fault in the first instance in provoking or bringing on the difficulty,” he may use deadly force only “when attacked [he] re treats as far as possible, announces his desire for peace, ” and reasonably apprehends imminent serious bodily
harm. Id. (citing Bailey v. Commonwealth , 200 Va. 92, 96 (1958)). Here, the trial court rationally rejected Warren ’s claim of self

- defense. First, the record firmly established that Warren was “at fault” in provoking the altercation

. Gilbert , 28 Va. App.
at 472. Tiondra testified that Warren instigated a series of violent confrontations that culminated
in her near

- fatal stabbing. By the time Warren approached Tiondra with the knife, he had already broken into Jasmine’s home, provoked Tiondra into “tussling” in the kitchen, thrown her into a bush, brutally beat Jasmine , and violently seized the knife Tiondra used to defend Jasmine

. Thus, the evidence demonstrated that “appellant created the [very] situation which resulted in his- 10

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stabbing [the victim] with his knife.” Hughes , 39 Va. App. at 464. Consequently, he could

resort to deadly force only if he had “retreat[ed] as far as pos sible ” and “ announc [ed] his desire for peace ” while reasonably fearing imminent danger

. Gilbert , 28 Va. App. at 472 ( citing Bailey , 200 Va. at 96 ). Yet the record is devoid of any evidence that Warren either abandoned the fight or retreated; to the contr ary, he advanced toward Tiondra and assault ed her as she was retreating and surrendering

. See Lynn v. Commonwealth , 27 Va. App. 336, 350 (1998) (rejecting claim of
excusable self

- defense where defendant “neither abandoned the fight nor retreated”); see also Hughes , 39 Va. App. at 464

. Second, the evidence established that Tiondra did not pose a threat of “imminent bodily harm” to Warren at the time of the stabbing

. Diffendal , 8 V a. App. at 421. Rather , she expressly abandoned the fight and retreated once Warren disarmed her. Any claim to self

- defense Warren might otherwise have exercised dissipated with Tiondra’s disarmament and retreat. See
Commonwealth v. Sands , 262 Va. 724, 726 (2001) (holding that the trial court properly refused to give defendant’s proffered jury instruction on self

- defense because there was no evidence that defendant was in immediate danger when she killed her abusive husband). Finally, even if Warren cou ld conceivably have viewed Tiondra’s surrender as presenting an immediate danger to his safety , his use of a deadly weapon to attack her was “excessive .

. . in relation to the perceived threat.” Foster , 13 Va. App. at 383. By stabbing a surrendering,
unarmed individual with a knife, Warren “clearly exceeded any claim to self

- defense that [he] may have asserted.” Peeples v. Commonwealth , 30 Va. App. 626, 639 (1999) ( en banc ) ( Lemons and Annunziata, JJ. , con c urring ) (affirming conviction for aggravated malicious wounding where defendant fire d pistol twice into surrendering victim’s legs). Accordingly, the trial court ’s finding that Warren did not act in self

- defense was not plainly wrong and was supported by credible evidence.- 11

- C ONCLUSION For the foregoing reasons , w e affirm Warren’s conviction. Affirmed

.