COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Alston and Senior Judge Coleman

Argued at Richmond, Virginia

RESHAUN DEMOND TINSLEY

MEMORANDUM OPINION* BY

v. Record No. 1026-11-2 JUDGE LARRY G. ELDER

MAY 1, 2012

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Margaret P. Spencer, Judge

Ronald M. Gore, Jr., for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee.

Reshaun Demond Tinsley (appellant) challenges his conviction for felony hit and run. 

Appellant argues the trial court erred in refusing to grant his alibi jury instruction because the record 

contains sufficient evidence to support his theory that he was somewhere other than at the scene of 

the crime. Because the record does not contain more than a scintilla of evidence to establish 

appellant was not at the scene of the crime at the exact time it was committed, the trial court did not 

err in refusing the alibi instruction. We therefore affirm appellant’s conviction. 

At the conclusion of all the evidence, appellant proffered an alibi instruction that read: 

The defendant need not prove his alibi beyond a reasonable 

doubt or even by a preponderance of the evidence. The defendant 

must only introduce evidence that, when considered with the whole 

evidence, creates a reasonable doubt that the defendant was present 

at the time and place the alleged offense was committed, you shall 

find him not guilty [sic].

 * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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The trial court denied the instruction, reasoning that “there must be some evidence that the 

defendant was at a particular place which would make it impossible for him and improbable for him 

to have committed the crime.” The jury subsequently found appellant guilty of felony hit and run, 

and this appeal followed. 

As a general rule, the matter of granting and denying 

instructions does rest in the sound discretion of the trial court. “Our 

‘sole responsibility in reviewing [jury instructions] is to see that the 

law has been 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. 

Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009) (citations omitted). 

In Cooper, the Supreme Court limited the trial court’s discretion in determining whether to 

grant or deny, providing that “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,’” the trial court must “grant an alibi instruction.” Id. at 385-86, 673 S.E.2d at 190 

(quoting Johnson v. Commonwealth, 210 Va. 16, 20, 168 S.E.2d 97, 100 (1969)). When such 

evidence is absent, the trial court must refuse the instruction. Id. at 386, 673 S.E.2d at 190. 

In establishing the evidentiary threshold that must be met in order to warrant an alibi 

instruction, the Court relied on the standard articulated in Johnson. In that case, the owner of a 

restaurant closed at approximately 10:00 p.m. and an employee discovered a break-in at 7:00 a.m. 

the following morning. To account for the defendant’s whereabouts during the time frame of the 

burglary, his mother testified that he was at her home that evening from 8:45 until approximately 

11:00 p.m. An acquaintance of the defendant testified that appellant arrived at his residence at 

approximately 11:30 p.m. and left the following morning at 5:45 a.m. The acquaintance confirmed 

that the restaurant was approximately three blocks from his residence. 
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In ruling that an alibi instruction was not warranted, the Court noted that two standards 

existed among the states as to what quantum of evidence is sufficient to justify an alibi instruction. 

Johnson, 210 Va. at 18-19, 168 S.E.2d at 99. Some jurisdictions require “such an instruction . . .

where the evidence tends to establish such a defense.” Id. at 18, 168 S.E.2d at 99. At the other end 

of the spectrum, “where the evidence of alibi fails to show that the accused was not at the scene of 

the crime at the exact time it was committed, or for the entire period when it was or could have been 

committed, an instruction on alibi is not necessary.” Id. at 19, 168 S.E.2d at 99. The Court adopted 

the latter approach and affirmed the defendant’s conviction because the evidence did not “account 

for [the defendant’s] presence between the time he left his mother’s home and the time he reached 

[his acquaintance’s] home, nor for the period between the time he left the latter home until the break 

in was discovered at about 7:00 a.m.” Id. at 20, 168 S.E.2d at 100. Accordingly, “the evidence 

offered in support of the defendant’s claim of alibi [was] lacking in the required proof of his 

absence from the scene at the time of the commission of the crime [such] that the trial court properly 

refused to grant the requested instructions.” Id.

Here, the record makes clear under this standard that the evidence does not warrant an alibi 

instruction. On the evening of January 16, 2010, Lynn Taylor was struck by a vehicle. Prior to the 

incident, Taylor had been arguing with his girlfriend, Shanese Wright. After the fight, Wright 

called appellant to come pick her up. Appellant agreed and said “he was twenty to thirty minutes 

away.” This occurred at approximately 9:30 p.m. However, Wright called appellant on his cell 

phone approximately five minutes later and told him not to come over, to which appellant 

responded, “All right.” 

In the meantime, Taylor crossed the street and encountered Claude Hector. Due to a prior 

dispute, Taylor initiated a physical altercation with Hector that lasted approximately five to six 

minutes before Hector was able to break away. Approximately five to ten minutes after the fight 
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ended, Taylor was hit by a vehicle similar to one in appellant’s possession. Taylor identified 

appellant as the driver both to the police and at trial. Appellant denied hitting Taylor to the police, 

but did not provide an alibi accounting for his whereabouts on the night of the accident and did not 

disclose his specific location during his testimony at trial. 

This evidence falls short of the heightened standard set forth under Johnson, which 

emphasized the need for evidence of the defendant’s absence from the scene of the crime as the 

basis for the alibi instruction. In this case, according to the testimony of Taylor and Hector, 

approximately ten to fifteen minutes elapsed from the time Wright called appellant until Taylor was 

struck by the vehicle. Thus, under appellant’s own evidence that he could reach Wright’s location 

in twenty to thirty minutes, he was still at least five minutes away from the scene of the crime when 

it was committed. Nothing in the record establishes the basis for appellant’s estimate, so it 

“remain[s] within the realm of physical possibility for [appellant] to have committed the crime.” 

Owens v. State, 809 So. 2d 744, 747 (Miss. App. 2002).

Although appellant’s estimate permitted him to argue he was still at least five to fifteen 

minutes away when the crime occurred, many factors can change the estimated time from a 

destination. It is not apparent from the record the conditions under which appellant was traveling to 

Wright’s location, whether he was already en route or stationary, what road conditions were like, or 

what speed he was driving. In light of all these unknown variables, appellant’s temporal estimation 

“‘does not cover sufficient of the time at or before the crime to render [his] presence . . . impossible 

or highly improbable.’” Johnson, 210 Va. at 18, 168 S.E.2d at 99 (quoting 23 C.J.S. Criminal Law

§ 923, at 656); see Black’s Law Dictionary 79 (8th ed. 2004) (defining “alibi” as a “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”). Because the record does not establish appellant’s 
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location, his “defense is nothing more than a denial [that does] not rise to the level of alibi.”1

 

Owens, 809 So. 2d at 747; see State v. Berry, 419 P.2d 337, 341 (Ariz. 1966) (“An alibi which 

leaves it possible for the accused to be the guilty man is no alibi at all.” (quoting Singh v. State, 

280 P. 672, 675 (Ariz. 1929) (emphasis omitted))). 

Appellant was required to provide evidence that tended to show he was at some location

such that he would not be present at the scene of the crime in order to entitle him to an alibi jury 

instruction. Because appellant offered evidence merely that he was “twenty to thirty minutes away” 

from the scene of the crime fifteen minutes before it occurred, leaving open the possibility that he 

could have been present when the crime was committed, the trial court did not err in refusing his 

proffered alibi instruction. Finding no error, we affirm appellant’s conviction.

Affirmed.

 1 There may well be circumstances in which a temporal estimation could justify an alibi

instruction. Given the close time frame in this case, however, without testimony of appellant’s 

actual physical location—e.g., a particular intersection or a nearby landmark—merely stating 

that he is a certain unit of time away from the scene of the crime falls short of the kind of 

particularized evidence Cooper and Johnson require to justify the giving of a formal alibi 

instruction.