COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Humphreys, Petty, Beales, Alston , McCullough, Chafin, Decker, O’Brien, Russell and AtLee Argued at Richmond, Virginia
LADAWN SHRIEVES KING OPINION BY v. Record No. 1684-13-4 CH IEF JUDGE GL EN A. HUFF APRIL 7, 2015 COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC
FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Brett A. Kassabian, Judge Amy L. Wilson (Amy L. Wilson, PLC, on briefs), for appellant. Craig W. Stallard, Assistant At torney General (Mark R. Herring, Attorney General, on brief), for appellee.
LaDawn Shrieves King (“appellant”) appeal s her convictions for malicious wounding, in violation of Code § 18.2-51, and use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. Following a jury tr ial in the Circuit Court of Fa irfax County (“trial court”), appellant was sentenced to a total of eight years’ incarceration in the Vi rginia Department of Corrections. On appeal, appellant contends th at the trial court erred by failing to properly instruct the jury on the defense of accident. For the following reasons, this Court reverses appellant’s convictions and remands this matter to the trial court fo r a new trial, at the discretion of the Commonwealth.
I. BACKGROUND “When reviewing a trial court’s refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruc tion.” Commonwealth v.PUBLISHED- 2 - Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002) (citing Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991)). So viewed, the evidence is as follows. At trial, the Commonwealth an d appellant presented two different accounts of the events that transpired. Dwayne King (“King”), appellant ’s husband, testified th at he and appellant had been discussing divorce for a year and a half. On the evening of Nove mber 20, 2012, King was rubbing appellant’s head to provide relief for appellant’s migraine. Appellant fell asleep on King’s lap and, shortly thereafter, King went to sleep on the other couch in the living room. King next remembered “waking up to a gunshot.” At first, King did not re alize he had been shot in the right forearm, but he noticed appellant “standing on the other side of th e couch” with a “gun in [her] hand.” King reached for his cell phone, but it was no longer in the location he had left it. Appellant “immediately ran through the kitchen,” and King follo wed. Upon entering the kitchen, King seized the house phone, “locked [himself] into the bathroom on the main level,” and called 911. At the same moment, appellant ran upstairs. While King was on the phone, he heard appellant “come down the stairs” and the front door slam. Shortly thereafter , King exited the bathroom and “saw that [appellant’s] vehicle was gone.” Appellant testified that on Nove mber 20, 2012, she an d King were “[i]n ov er our heads in a lot of ways.” 1 Because of this, appellant decided she “didn’t want to live anymore” and was going to kill herself using her firearm. Next , appellant explained that she loaded her firearm and took King’s phone so she could leave a message for him. Afterwards, a ppellant went downstairs into the kitchen and sent her son a text me ssage saying she loved him. Acco rding to appellant, she then put the phone down and saw King sta nding in front of her. King then reached for the firearm in

1 Appellant stated that she and King were st ruggling “financially, emotionally, just in terms of dealing with [their] children.” Appella nt indicated she “felt like [she] was worthless, not performing up to [her] standards.”- 3 - appellant’s right hand and attempted to pull it aw ay. During the struggle , the firearm discharged and wounded King in the right forearm. Unaware that King had been in jured, appellant “put the gun to [her] head” and attempted suicide, however, the firearm failed to discharge. Next, appellant immediately ran up the stairs, locked herself in a bathroom, and attempted suicide again. After the firearm failed to discharge a second time, appellant grew fearful that the police wo uld arrive and take her to a mental institution. Consequently, appellant hid the fire arm in the upstairs li nen closet, ran to her vehicle, and drove away. At the hospita l, King was examined by Dr. Michael Pitta (“Pitta ”) who indicated in medical records that King “was shot by his girlfriend accide ntally in his righ t forearm.” Pitta did not testify at trial. At trial, the jury was given inst ructions defining malicious wounding 2 and malice. 3 Instruction 6, in pertinent part , instructed, “You may infer mali ce from the deliberate use of a deadly weapon unless, from all the evidence, you have a reasonable doubt as to whether malice existed.” Appellant relied on an accident theory in her defense and proffere d a modified model jury instruction (“Instruction L”) on a ccident. The instruction stated: Where the defense is that malicious wounding was an accident, the defendant is not required to prove this fact. The bu rden is on the

2 Instruction No. 4, in re levant part, stated: The defendant is charged with the crime of malicious wounding. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime: (1) That the defendant shot Dwayne King; and (2) That such shooting was with intent to kill or permanently maim, disfigure or disa ble Dwayne King; and (3) That the act was done with malice.

3 Instruction B, in relevant part, defined mali ce as “that state of mi nd which results in the intentional doing of a wrongful act to another without legal excu se or justification . . . .”- 4 - Commonwealth to prove beyond a reasonable d oubt that the malicious wounding was not accident al. If after considering all the evidence you have a reasonabl e doubt whether the malicious wounding was accidental or intent ional, then you shall find the defendant not guilty. The trial court rejected the instru ction explaining, “My basis for denyi ng L is that I think the other instructions adequately instruct the jury as to the fact that it has to be an intentional act, whether or not it is unlawful wounding, a ma licious wounding or assault.” During deliberations the jury as ked, in writing, two questions. The firs t question was, “If a weapon were discharged during a struggle or acci dentally, would this constitute a shooting with intent to kill, as stated in element tw o of malicious wounding?” Th e second jury question was, “What is the legal definition of an unlawful wou nding?” Over the objection of defense counsel the trial court responded to the jury ’s questions by stating, “You must rely upon the instructions previously provided and give the words in each of the instructions their plain and ordinary meaning.” After further deliberations th e jury returned its verdict finding appellant guilty of malicious wounding and use of a firearm in the commi ssion of a felony. Appe llant appealed to this Court and, by memorandum opinion, a panel reversed and remanded. 2014 Va. App. LEXIS 356 (Va. Ct. App. Oct. 28, 2014). Upon moti on of the Commonwealth, rehearing en banc was granted thereby vacating th e panel decision and staying the Court’s mandate.
II. STANDARD OF REVIEW “As a general rule, the matter of granting a nd denying instructions . . . rest[s] in the sound discretion of the trial court.” C ooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009) (citing Daniels v. Commonwea lth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008)). The trial court’s “broad discreti on in giving or denying instructions requested” is reviewed for an abuse of discretion. Gaines v. Comm onwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778- 5 - (2003) ( en banc ). On appeal, this Court’s “‘sole responsibility in revi ewing [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)). “‘A defendant is entitled to have the jury inst ructed only on those theories of the case that are supported by [more than a scintilla of] ev idence.’” Eaton v. Co mmonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990) (quoting Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986)). “‘The weight of the credible ev idence 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 th e ‘other credible evidence th at negates’ it.” Woolridge v. Commonwealth, 29 Va. App. 339, 348, 512 S.E .2d 153, 158 (1999) (quoting Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430 S.E .2d 563, 565 (1993)). “If a proffered instruction finds any support in cr edible evidence,” however, “its refusal is reversible error.” McClung v. Commonwealth, 215 Va. 654, 657, 212 S. E.2d 290, 293 (1975) (citing Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908 (1947)). Additionally, “[w]here the conf licting evidence tends to sust ain either the prosecution’s or defense’s theory of the case, the trial judge must instruct the jury as to both theories.” Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991) (emphasis added) (citing Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990)). Phrased differently, “[i]f there is evidence in the record to suppor t the defendant’s theo ry of defense, the trial judge may not refuse to grant a pr oper, proffered instruction .” Id. (emphasis added). Consequently, “the trial court must instruct on both theories to guide a jury in their deliberations as to the law applicable to the case, depending up on how the jury decides the facts.” Id. (citing Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986)). Parties are not- 6 - entitled, however, to duplicative or repetitive inst ructions covering the same principle of law. Remington v. Commonwealth, 262 Va. 333, 349, 551 S.E.2d 620, 631 (2001); see also Bagley v. Weaver, 211 Va. 779, 783, 180 S.E.2d 686, 689 (1971) (“[W ]e take the opportunity to condemn the multiplication of instructions and the requesting and granting of those that are repetitious. Such action can only confuse and mislead the jury and tends to provoke error.”).
III. ANALYSIS On appeal, appellant contends that the trial court erred by failing to properly instruct the jury on accident. Specifically, appellant contends that there was sufficient evidence in the record supporting appellant’s accident th eory, the proffered instruction was a proper statement of the law, and, therefore, her proposed accide nt instruction should have been given. During the en banc oral argument, the Commonwealth conceded that appellant’s accident defense was supported by more than a scintilla of the evidence. While this Court is not bound by a party’s concessions of law, Crawford v. Commonwealth, 55 Va. App. 457, 481, 686 S.E.2d 557, 569 (2009), this Court holds that more than a sc intilla of the evidence , when “view[ed] . . . in the light most favorable to the proponent of the instru ction,” Cooper, 277 Va. at 381, 673 S.E.2d at 187, supported appellant’s proffered inst ruction. Appellant’s testimony indicated that she planned to commit suicide on the night of th e incident, but King woke up before she could do so. According to appellant, King attempted to disarm appellant; a struggle ensued. During the struggle, King reached for appellant’s right arm, which held the firearm, the firearm accidentally discharged, and King was wounded. This testimony was corroborated by Pitta’s medical records, which indicated that King was “acci dentally” shot in his right forearm. This evidence, which would support appellant’s acciden t theory if believed, constitutes more than a mere scintilla.- 7 - Notwithstanding, the Commonwealth contends that the instructions given at trial fully and fairly covered the principles of law at i ssue. Specifically, the Commonwealth asserts that because the given instructions on malice required an intentional act, the jury ’s verdict reflected a decision that appellant’s ac tions were not accidental. The Commonwealth’s argument rests primar ily on this Court’s decision in Waters v. Commonwealth, 39 Va. App. 72, 80, 569 S.E.2d 763, 767 (2002). In Waters, defendant was charged with first-degree murder after pulling up to a group of men, threatening to kill them, and then shooting the victim. Id. at 75, 569 S.E.2d at 764. At trial, defendant testified that he had only intended to scare the victim and that the shooting was accidental. Id. The trial court refused defendant’s proposed jury instruction on accidental killing that stated, “[i]f after considering all the evidence you have a reasonabl e doubt whether the kill ing was accidental or intentional, then you shall find the defendant not guilty.” Id. at 77-78, 569 S.E.2d at 765. This Court affirmed the trial court on two grounds. Id. at 78-79, 569 S.E.2d at 766. First, we found that the principle of law stated in defendant’s instruction had already been covered by previous instructions. 4 Id. Secondly, we held that the propos ed instruction improperly stated the law. Specifically, this Court explained that even if the killing had b een accidental, it took place during a criminal assault and, therefore, would not have absolved defenda nt of all offenses included in the charge. Id. at 80, 569 S.E.2d at 767. The opini on explained that “even if the killing had been an accident . . . it is clear from Waters’ own tes timony that the killing occu rred in the course of his commission of a misdemeanor. An accident al killing committed in the course of an unlawful, nonfelonious act constitu tes involuntary manslaughter.” Id. As such, the “proffered

4 Defendant’s proposed jury instruction would have correctly informed the jury that the Commonwealth bore the burden of proving the ki lling was not an accident. Id. at 78-79, 569 S.E.2d at 766. This Court determined that other in structions sufficiently informed the jury of the Commonwealth’s burden. Id. at 79, 569 S.E.2d at 766.- 8 - jury instruction, which required an outright acq uittal if the jury had a reasonable doubt as to whether the killing was intentiona l, was improper under the facts of this case.” Id. This Court therefore held that because the ju ry instruction improperly stated the law, the trial court correctly refused to grant it. 5 Id. In contrast to this Court’s holding in Waters, the Supreme Co urt has held that “[w]here the evidence warrants, an accused is entitled to an instruction pr esenting his theory of accidental killing as a defense.” Martin v. Common wealth, 218 Va. 4, 6, 235 S.E.2d 304, 305 (1977) (per curiam). In Martin, the defendant was charged w ith second-degree murder but raised accident as a defense. Id. at 4, 235 S.E.2d at 304. The de fendant’s accident theory was supported by the evidence, and the defendan t proposed an instruction 6 regarding accident and the burden of proof. Id. at 6, 235 S.E.2d at 305. Like Waters, the trial court rejected the instruction on the ground that other instructions adequately cove red the principles of law set forth in the proposed instruction. Id. The Supreme Court reversed, 7 however, explaining that the “accused is entitled to an

5 Unlike Waters, the case at bar presented no other charges or instructions against appellant that would have survived a jury’s verd ict based on a finding of accident. Therefore, the proposed jury instruction on accident was a corr ect statement of the law, unlike in Waters.

6 The proposed instruction read, Where, as in the case at bar, the defense is that the killing was an accident, the defendant is not required to prove this fact, beyond a reasonable doubt, or by a preponderance of the evidence, but the burden is upon the Commonwealth to prove beyond a reasonable doubt that said killing was not acciden tal; therefore, if after hearing all the evidence, you have a reasonable doubt whether said killing was accidental or that it was intentional, then you should find the defendant . . . not guilty. Id. at 6, 235 S.E.2d at 305.

7 In reversing the trial court, the Commonwealth’s argument that “the substance of the instruction was covered by other in structions given to the jury,” was specifically rejected. The- 9 - instruction presenting his theory [of the case] .” Id. (citing Jones v. Commonwealth, 196 Va. 10, 15, 82 S.E.2d 482, 485 (1954)). The Supreme Court he ld that “[i]n none of the instructions granted by the trial court . . . was the jury told that the burden was upon the Commonwealth to prove the killing was not accidental and that the ju ry should acquit the defendant if it entertained a reasonable doubt whether the death was accidental or intentional.” Id. at 6-7, 235 S.E.2d at 305. The Supreme Court held that “although the jury may have rejected the theory of accidental killing by finding defendant guilty of murder, b ecause this finding may have resulted from the mistaken belief that the burden was upon the de fendant to prove the ki lling was accidental, the error was prejudicial.” Id. at 7, 235 S.E.2d at 305. While Martin dealt with a homicide case, entitlement to an instruction on a defendant’s th eory of defense, when supported by evidence, is not restricted to homicide cases. See, e .g., Bryant v. Commonwealth, 216 Va. 390, 219 S.E.2d 669 (1975) (defendant accused of rape defendi ng on theory of consent was entitled to an instruction that “informed the jury that if the act of intercourse was consensual then there could not be a conviction”). In keeping with the analysis in Martin, this Court holds in the pres ent case that appellant was entitled to her requested finding instructi on on the defense of “accident,” because it was supported by more than a scintilla of the evidence and would have legally entitled her to acquittal under the circumstances if believed by the jury. Denying an instruction on a defendant’s theory of defense, if supported by more than a scintilla of the eviden ce, creates the risk of jury confusion and misunderstanding, especially when the jury has not otherwise been instructed that it is the Commonwealth’s burden to disprove the defendant’s th eory beyond a reasonable doubt. unsuccessful position of the Commonwealth had b een that the defense theory was adequately covered by instructions “that the Commonwealth must prove beyond a reasonable doubt every material and necessary element of the offense charged . . . [and] the defendant is presumed innocent.”- 10 - See Martin, 218 Va. at 7, 235 S.E.2d at 305. In su ch circumstances, therefore, a trial court abuses its discretion by denying a finding instru ction on the defense’s theory of the case. As applied to the case at bar, the risk of juror confusion w ould be heightened if a jury were left to discern the legal principle of “accident” by negative inference from the finding instruction covering the elements of the offense. This Court’ s decision in Waters, 39 Va. App. 72, 569 S.E.2d 763, is therefore overruled to the extent that it is in consistent with this Court’s holding herein. “[W]hen a principle of law is vital to a defendant in a crim inal case, a trial court has an affirmative duty [to properly] in struct a jury about the matter.” Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). From a review of the record, it is apparent that the principle of law covering “accident” was vital to the appellant in this case, was supported by more than a scintilla of the evidence, and was necessary for the jury’s understanding of the principles of law that were to govern their deli berations. Accordingly, ap pellant was entitled to have a properly stated instruction given on her theory of the case, w ithout the need to rely solely on a negative implication arising from the Comm onwealth’s proffered instructions on the law of malice. See Martin, 218 Va. at 7, 235 S.E.2d at 305 (“[A]lthough the jury ma y have rejected the theory of accidental killing by finding defendant guilty of murder, because this finding may have resulted from the mistaken belief that the burd en was upon the defendant to prove the killing was accidental, the error was prejudicial.”).
IV. CONCLUSION Based on the foregoing, this Court finds that the trial court erred by failing to properly instruct the jury on accident and remands the case to the trial court for a new trial, if the Commonwealth be so advised. Reversed and remanded.- 11 - Humphreys, J., with whom Petty and AtL ee, JJ., join, concurring in the judgment. [I]t [is] the most sacred constitu tional right of every party accused of a crime, that the jury should respond as to th e facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of th e jury to follow the law, as it is laid down by the court. United States v. Battiste, 2 Sumn. 240, 24 F. Cas. 1042, 1043 (No. 14,545) (CC Mass. 1835). The Anglo-American right to a trial by jury is now more than seve n centuries old and as enshrined in the Sixth Amendment, our Constitution guarantees that such a trial must be a fair one. Juries are the sole judges of what the facts in a case are but they are lay men and women who are expected to digest, unde rstand, and apply legal principl es that took the judge and lawyers involved in the case years of study and e ducation to understand. Those legal principles are presented to jurors in the form of instructio ns that, however correct a statement of law they may be, are often intricate, contradictory, and co nfusing from a juror’s point of view. Although this may necessarily be the case because of the complexity of the legal issues involved, trial courts ought not exacerbate any confusion by denyi ng a defendant a clear a nd correct instruction that specifically explains the law with respec t to a legally recognized defense theory of innocence or mitigation of the offense charged. I write separately only because the majority opinion may be fairly read to suggest that this principle only applies to the defense of “accident,” a limitation th at, in my view, is inconsistent with Virginia jurisprudence. This lack of clarity in the majority opinion may result in unnecessary confusion when trial courts are co nfronted with a similar situation involving a defense theory other than “accident.” Furthermore, contrary to the analysis of the majority, I believe the starting point for the analytical reso lution of the assignment of error in this case should be the general law applicable to all jury instructions rather than just those cases in which the defense of “accident” is advanced.- 12 - As the majority acknowledges, “[a] defendant is entitled to have the jury instructed only on those theories of the case that are supporte d by evidence.” Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986) (emphasis added). But implicit in that holding is the converse affirmative right to an instruction on a th eory of innocence if more than a scintilla of evidence has been presented to support such theory. Id. Particularly, “whe n a principle of law is vital to a defendant in a criminal case, a trial co urt has an affirmative duty [to properly] instruct a jury about the matter.” Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). “If there is evidence in the record to supp ort the defendant’s theory of defense, the trial judge may not refuse to grant a proper, proffe red instruction.” Del acruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990). Relying on well-settled Virginia law, the majority correctly holds that appellant was entitled to a properly stated inst ruction on her “accident ” theory of defense. As the majority notes, it is not sufficient that the Commonwealth ’s proffered instructions may allow argument that the evidence supports a negative inference th at may establish the defendant’s chosen theory of defense. In my view, it is axiomatic that a de fendant is entitled, as a matter of right, to a jury instruction that affirmatively states the law with respect to the theory of defense, so long as the defense is recognized by the law, is supported by more than a scintilla of evidence, and the proposed instruction correctly states the law. In Bryant v. Commonwealth, 216 Va. 390, 393, 219 S.E.2d 669, 671 (1975), our Supreme Court held that a jury instruction based on consent wa s “crucial to [the appellant’s] defense,” against a rape charge, reasoning that it could not find th at “the instructions granted by the [trial] court sufficiently informed the jury that if the act of intercour se was consensual there could not be a conviction.” Th is Court reached the same conc lusion in Mery v. Commonwealth,- 13 - 12 Va. App. 821, 407 S.E.2d 18 (1991), a case that pr eceded Waters, that involved a similarly affirmative consent instruction in a rape case. We held that, [N]one of the jury instruc tions cited by the Commonwealth specifically deals with the issue of consent. Rather, they address the subject only by inference. Those instructions specifically address the issues of force, resi stance, and the overcoming of the prosecutrix’s will. We find that their inferential treatment of the principle of consent did not ade quately instruct the jury on a subject that was both vital to [the appellant’s] defense and sufficiently supported by the evid ence to make it a jury issue. Id. at 825, 407 S.E.2d at 21. Likewise, in Delacruz, this Court held that the trial court erred in refusing to offer an instruction on self-defense for a brandishing a fir earm charge, reasoning, “it cannot be fairly said that either instruction fully informed the jury of the right of self[-]defense or offered the jury the option of finding [the appe llant] not guilty.” 11 Va. App. at 339, 398 S.E.2d at 105-06.
A pplying this principle to a possession of a firearm by a felon case, this Court held, “because necessity was appellant’s ‘sole defens e’ to the charged crime and appellant gave testimony supporting that defense, the trial court had an affirmative duty to give a corrected instruction to the jury.” Humphrey v. Commonwealth, 37 Va. App. 36, 51, 553 S.E.2d 546, 553 (2001). This proposition has also been extended to situations where a defendant’s theory of defense negates an element of an offense, such that the defendant coul d be convicted of a lesser-included offense. For example, in Miller v. Commonwea lth, 5 Va. App. 22, 24, 359 S.E.2d 841, 842 (1987), we held “[i]f there is any evidence that would support a conviction for the lesser included offense, the tr ial court must, upon request of couns el, instruct the jury as to the lesser included offense.” Finding more than a scintilla of eviden ce to support defendant’s heat of passion defense to his charge of malic ious wounding, we found the trial court erred in failing to offer an instruction for unlaw ful wounding. Id. at 25, 359 S.E.2d at 843.- 14 - Finally, in Cooper v. Commonwealth, 277 Va. 377, 673 S.E.2d 185 (2009), 8 an instruction similar to the one in this case, but re lating to the defense of alibi, was proposed. Our Supreme Court discussed its own inconsistent ju risprudence regarding wh ether the principle of law was adequately covered in ot her instructions and concluded, 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 [ a scintilla of evidence ] is present, refuse when the evidence is absent

. Id. at 385-86, 673 S.E.2d at 190 (emphasis added). Thus, the law in this regard is not unique to the defense of “accident,” as applied in Martin, and logically extends to all other legally cognizable defe nses and we should not suggest otherwise. If a negative inference as to a cr iminal defendant’s defense of “accident” in a malicious wounding case is insufficient, a negative inference is necessarily insufficient as to other defenses, to a whole host of criminal charges, such as those already noted. 9 For these

8 Cooper is cited in the majority opinion but only for the standard of review and the definition of “a scin tilla of evidence.”

9 Other jurisdictions have similarly applied th is principle to legally recognized defenses beyond “accident.” See e.g., People v. Nunez, 841 P.2d 261, 264 (Colo. 1992) (holding an instruction embodying a defendant’s theory of the cas e must be given if the record contains any evidence to support the theory); State v. Fu ller, 506 A.2d 556, 559 (Conn. 1986) (holding “[i]f the defendant asserts a recognized legal defense and the evidence indi cates the availab ility of that defense, such a charge is obligatory and the defend ant is entitled, as a matte r of law, to a theory of defense instruction”); State v. Weller, 590 So. 2d 923, 927 (Fla. 1991) (finding a defendant is entitled to an instruction as to any valid defe nse supported by evidence or testimony in the case); State v. Taylor, 307 P.3d 1142, 1149 (Haw. 2013) (holdi ng a defendant is entitled to a requested jury instruction on a defense when he presents some evidence going to the defense); Bouwkamp v. State, 833 P.2d 486, 490 (Wyo. 1992) (finding that due process considerations entitle criminal defendants to affirmatively stated theory of the ca se instructions when the instruction sufficiently informs the court of the defendant’s theory, is supported by competent evidence, and the offered instruction presents a defense rec ognized by statute or case law).- 15 - reasons, I also agree with the majority that Wa ters should be overruled to the extent that it conflicts with this principle. To be clear, I emphatically do not suggest that a defendant has the right to propound his particular version of a jury in struction resulting in duplicative instructions, or that a correct instruction of the law regarding a theory of defense propounded by the Commonwealth or the trial court sua sponte would not suffice. Within the principles outlined, the trial court has the discretion to determine which instructions to gr ant or deny from whatever source, provided more than a scintilla of evidence supports a defendant’s legally recognized theory of defense. The defendant’s right in this regard has been honored if a jury in struction has been given that accurately and affirmatively states the law regarding any such cognizable defense. Therefore, applying what I believe is the mo re logical analysis outlined above, I would hold that because every criminal defendant is ent itled to a jury instruction that affirmatively states the theory of any legally recognized de fense, if supported by more than a scintilla of evidence, and because “accident” is such a defens e since if accepted by th e jury, proof of such defense would negate an element of the offense, or otherwise entitle the defendant to an acquittal or mitigation of the charge and further, because the record in this case clearly establishes that all of these elements were present, I join my colleagues in reversing the judgment below in this case and remanding it for a new trial if the Commonwealth is so advised.- 16 - Beales, J., with whom Russell, J., joins, concurring. I join the majority opinion to the extent it holds that this case is controlled by Martin v. Commonwealth, 218 Va. 4, 235 S.E.2d 304 (1977) (per cu riam). I write separately to emphasize that the Supreme Court’s decision in Martin is the reason why we must reverse the trial court in this case. The present appeal is essentially Mar tin revisited. In Martin, as in this case, the defendant requested a jury instruction on “accident.” The proposed instruction in Martin, as with the proposed instruction in this case, constituted a correct statem ent of the law and was supported by more than a scintilla of evidence at trial. The Commonwealth advanced the same argument in Martin and in this case – that other instruc tions adequately covered the defense theory of accident. In both this case and in Martin, the proposed accident instruction was denied. See id. at 6, 235 S.E.2d at 305. Martin is materially indi stinguishable from this case, and, therefore, we must reach the same result as the Supreme Cour t in Martin because, of cour se, Supreme Court decisions are binding on this Court. There, the Supreme Court held, In none of the instructions grante d by the trial court, however, was the jury told that the burden was upon the Commonwealth to prove the killing was not accidental and that the jury should acquit the defendant if it entertained a r easonable doubt whether the death was accidental or intentional. It was error to refuse an instruction embodying these propositions. Id. at 6-7, 235 S.E.2d at 305. The Supreme Court emphasized the effect that the denial of the proposed accident instructi on potentially had on the jury ’s understanding of the Commonwealth’s burden of proof, adding, “And, although the jury may have rejected the theory of accidental killing by finding the defendant gui lty of murder, because this finding may have resulted from the mistaken belief that the burd en was upon the defendant to prove the killing was accidental, the error was prejudicial.” Id. at 7, 2 35 S.E.2d at 305. Likewise, the jury in the case- 17 - before us today was not instru cted that the Commonwealth had the burden of proving that the shooting was not accidental. Therefore, the inst ructions given to the jury in this case were inadequate for precisely the same reason th at the Supreme Court identified in Martin. Accordingly, the Supreme Court’s decision in Martin absolutely controls the result in this case. Our analysis does not require any furt her explanation than th at the Supreme Court’s decision in Martin mandates reversal here . On that narrow basis alone, I concur. 10

10 Consequently, I agree th at the portion of the pa nel decision in Waters v. Commonwealth, 39 Va. App. 72, 569 S.E.2d 763 (2002), th at is inconsistent with the Supreme Court’s decision in Martin and with the decision in this case today must be overruled. In the instant case, unlike in Waters, the Commonwealth c onceded at oral argument that an acquittal would have been proper if the ju ry had accepted appellant’s defens e of accident, given that there was no remaining offense to convict appellant of on which the jury had been instructed. This case does not affect the alternative holding in Waters.COURT OF APPEALS OF VIRGINIA
Present: Judges Al ston, Huff and Chafin Argued at Alexandria, Virginia
LADAWN SHRIEVES KING MEMORANDUM OPINION * BY v. Record No. 1684-13-4 JUDGE GLEN A. HUFF OCTOBER 28, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Brett A. Kassabian, Judge Amy L. Wilson (Amy L. Wilson, PLC, on briefs), for appellant. Craig W. Stallard, Assistant At torney General (Mark R. Herring, Attorney General, on brief), for appellee.
LaDawn Shrieves King (“appellant”) appeal s her convictions for malicious wounding, in violation of Code § 18.2-51, and use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. Following a jury tr ial in the Circuit Court of Fa irfax County (“trial court”), appellant was sentenced to a total of eight years’ incarceration in the Vi rginia Department of Corrections. On appeal, appellant contends th at the trial court erred by failing to properly instruct the jury on the defense of accident. For the following reasons, this Court reverses appellant’s convictions and remands this matter to the trial court fo r a new trial, at the discretion of the Commonwealth.
I. BACKGROUND On appeal, “‘we consider the evidence and al l reasonable inferences flowing from that evidence in the light most favorable to the Co mmonwealth, the prevailing party at trial.’” Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc )

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows. At trial, the Commonwealth an d appellant presented two different accounts of the events that transpired. Dwayne King (“King”), appellant ’s husband, testified th at he and appellant had been discussing divorce for a year and a half. On the evening of Nove mber 20, 2012, King was rubbing appellant’s head to provide relief for appellant’s migraine. Appellant fell asleep on King’s lap and, shortly thereafter, King went to sleep on the other couch in the living room. King next remembered “waking up to a gunshot.” At first, King did not re alize he had been shot in the right forearm, but he noticed appellant “standing on the other side of th e couch” with a “gun in [her] hand.” King reached for his cell phone, but it was no longer in the location he had left it. Appellant “immediately ran through the kitchen,” and King follo wed. Upon entering the kitchen, King seized the house phone, “locked [himself] into the bathroom on the main level,” and called 911. At the same moment, appellant ran upstairs. While King was on the phone, he heard appellant “come down the stairs” and the front door slam. Shortly thereafter , King exited the bathroom and “saw that [appellant’s] vehicle was gone.” Appellant testified that on Nove mber 20, 2012, she an d King were “[i]n ov er our heads in a lot of ways.” 1 Because of this, appellant decided she “didn’t want to live anymore” and was going to kill herself using her fi rearm. Next, appellant explained she loaded her firearm and took King’s phone so she could leave a message for him. Afterwards, appellant went downstairs into the kitchen and sent her son a text message sa ying she loved him. According to appellant, she then put the phone down and saw King stan ding in front of her. King then reached for the firearm in appellant’s

1 Appellant stated that she and King were st ruggling “financially, emotionally, just in terms of dealing with [their] children.” Appella nt indicated she “felt like [she] was worthless, not performing up to [her] standards.”- 3 - right hand and attempted to pull it away. During the struggle, th e firearm discharged and wounded King in the ri ght forearm. Unaware that King had been in jured, appellant “put the gun to [her] head” and attempted suicide, however, the firearm failed to discharge. Next, appellant immediately ran up the stairs, locked herself in a bathroom, an d attempted suicide agai n. After the firear m failed to discharge again, appellant grew f earful that the police woul d arrive and take her to a mental institution. Consequently, appellant hid the fire arm in the upstairs li nen closet, ran to her vehicle, and drove away. At the hospita l, King was examinedby Dr. Michael Pitta (“Pitta ”) who indicated in medical records that King “was shot by his girlfriend accide ntally in his right forear m.” Pitta did not testify at trial. At trial, the jury was given inst ructions defining malicious wounding 2 and malice. 3 Appellant relied on an accident theory in he r defense and proffered a modified model jury instruction (“Instruction L”) on a ccident. The instruction stated: Where the defense is that malicious wounding was an accident, the defendant is not required to prove this fact. The bu rden is on the Commonwealth to prove beyond a reasonable d oubt that the

2 Instruction No. 4, in re levant part, stated: The defendant is charged with the crime of malicious wounding. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime: (1) That the defendant shot Dwayne King; and (2) That such shooting was with intent to kill or permanently maim, disfigure or disable Dwayne King; and (3) That the act was done with malice.

3 Instruction B, in relevant part, defined mali ce as “that state of mi nd which results in the intentional doing of a wrongful act to another without legal excuse or justification . . . .” Instruction 6, in pertinent part , instructed, “You may infer malic e from the deliberate use of a deadly weapon unless, from all the evidence, you have a reasonable doubt as to whether malice existed.”- 4 - malicious wounding was not accident al. If after considering all the evidence you have a reasonabl e doubt whether the malicious wounding was accidental or intent ional, then you shall find the defendant not guilty. 4 The trial court rejected the instru ction explaining, “My basis for denyi ng L is that I think the other instructions adequately instruct the jury as to the fact that it has to be an intentional act, whether or not it is unlawful wounding, a ma licious wounding or assault.” During deliberations the jury as ked, in writing, two questions. The firs t question was, “If a weapon were discharged during a struggle or acci dentally, would this constitute a shooting with intent to kill, as stated in element tw o of malicious wounding?” The second jury qu estion was, “What is the legal definition of an unlawful wou nding?” Over the objection of defense counsel the trial court responded to the jury ’s questions by stating, “You must rely upon the instructions previously provided and give the words in each of the instructions their plain and ordinary meaning.” After further deliberations th e jury returned its verdict finding appellant guilty of malicious wounding and use of a firearm in the commissi on of a felony. Th is appeal followed.
II. ANALYSIS A. Standard of Review “As a general rule, the matter of granting and denying instructions do es rest in the sound discretion of the trial court.” Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009) (citing Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008)). On appeal, “[o]ur ‘sole responsibility in reviewing [jury instructions] is to see that the law has been

4 Appellant’s refused jury in struction is taken from Mart in v. Commonwealth, 218 Va. 4, 235 S.E.2d 304 (1977). In Martin, the trial court dete rmined that the refusal to instruct the jury on accident was error because “[i]n none of the in structions granted by the trial court, however, was the jury told that the burden was upon the Commonwealth to prove the killing was not accidental and that the jury should acquit the de fendant if it entertai ned a reasonable doubt whether the death was accide ntal or intentional.” I d. at 6-7, 235 S.E.2d at 305.- 5 - clearly stated and that the instruct ions 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)). Moreove r, “in deciding whet her a particular instruction is appropriate, we view the facts in the light most favorable to the proponent of the instruction.” Cooper, 277 Va. at 381, 673 S.E.2d at 187. Additionally, “an instruction must be supported by more than a scintilla of evidence.” Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d 756, 758 (1978) (citing Gibson v. Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975 )). “‘The weight of the credible evidence that will amount to more than a mere sc intilla . . . is a matter to be resolved on a case-by-case basis’ by assessing the evidence in support of a pr oposition against the ‘other credible evidence that negates’ it.” Woolridge v. Commonwealth, 29 Va. App. 339, 348, 512 S.E.2d 153, 158 (1999) (quoting Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430 S.E.2d 563, 565 (1992)). B. Accident Jury Instruction On appeal, appellant contends that the trial court erred by failing to properly instruct the jury on accident. Specifically, appellant contends that because there was sufficient evidence in the record supporting appellant’s acc ident theory in the case, the proffered instruction was proper and should have been given. The Commonwealth c ontends that the instru ctions used at trial fully and fairly covered the principles of law at issue. The Commonwealth asserts that because the instructions on malice required an intentional act , the jury had to concl ude appellant’s actions were not accidental. “‘A defendant is entitled to have the jury instructed only on those theories of the case that are supported by evidence.’” Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990) (emphasis added) (quoting Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 257,- 6 - 280 (1986)). “When reviewing jury instructions, an appellate court must ensure that the law has been ‘clearly stated’ and that the ‘instructions cover all issues’ fairly raised by the evidence.” Mouberry v. Commonwealth, 39 Va. App. 576, 581, 575 S.E.2d 567, 569 (2003) (quoting Tice v. Commonwealth, 38 Va. App. 332, 339, 563 S.E.2d 412, 416 (2002)). “A trial court should instruct the jury, when requested to do so, ‘on al l principles of law appl icable to the pleadings and the evidence.’” Id. at 582, 575 S.E.2d at 569 (quoting Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979)). Indeed, “[i]f a proffered instruction finds any support in credible evidence, its refusal is reversib le error.” McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975) (citing Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908 (1947)). “Where the conflicting evidence tends to sustai n either the prosecution’s or defense’s theory of the case, the trial judge must instruct the jury as to both theories .” Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (19 91) (emphasis added) (citing Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990)). Further, “[i]f there is evidence in the record to support the defendant’s theory of defense, the trial judge may not refuse to grant a proper proffered instructio n.” Id. Consequently, “the tria l court must inst ruct on both theories to guide a jury in their deliberations as to the law a pplicable to the case, depending upon how the jury decides the facts. ” Id. (citing Cooper v. Commonwealth, 2 Va. Ap p. 497, 500, 345 S.E.2d 775, 777 (1986)). Parties are not entitled, however, to duplicative instructions covering the same principle. Remington v. Commonwealth, 26 2 Va. 333, 349, 551 S.E.2d 620, 631 (2001). “[V]iew[ing] the facts in the light most favorable to the proponent of the instruction,” this Court finds that credible evidence supported appe llant’s proffered instruction. Cooper, 277 Va. at 381, 673 S.E.2d at 187. At trial, King testifie d in support of the prosecution’s malicious wounding theory of the case. Specifically, Ki ng indicated that he woke up after being- 7 - deliberately shot by appellant. In contrast, appellant offered a st rikingly different account of the incident. Appellant’s testimony i ndicated that she planned to co mmit suicide on the night of the incident; however, King woke before she could complete the act. According to appellant, King attempted to disarm appellant while appellant was sending a goodbye message to their child. During the struggle, King reached for appellant’s right arm, which held the firearm, the firearm accidentally discharged, and King was wounded. Moreover, appellant’s testimony established that she did not intend to deliberately ha rm King but wanted to commit suicide. In the very unique facts of this case and wh ile balancing the relevant standards of review, this defendant was entitled to the instruction at issue. See Cooper, 277 Va. at 381, 673 S.E.2d at 187. Appellant’s testimony amounts to “more than a scintilla of eviden ce.” Eaton, 240 Va. at 255, 397 S.E.2d at 297. Additionally, the trial court’s response to the jurors’ question, “You must rely upon [all of] the instructions previous ly provided and give the words in each of the instructions their ordinary and pl ain meaning” is too simplistic give n the circumstance presented. Rather, “when a principle of law is vital to a de fendant in a criminal cas e, a trial court has an affirmative duty properly to instruct a jury about the matter.” Ji menez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). From a review of the record, th e principle of law covering “accident” was vital to the appellant in this case. Accordingly, appellant was entitled to have a properly stated instruction given on her theory of the case, without the need to rely solely on a negative impli cation arising from the Commonwealth’s proffered instructions on the law of malice. As appellant’s theory of the case was supported by more than a scintilla of evidence , the trial court committe d an error of law in failing to grant appellant’s proffered instruction covering her theory of the case. Consequently, this Court finds that the trial court abused its disc retion in failing to properly instruct the jury on accident.- 8 - III. CONCLUSION Based on the foregoing, this Court finds that the trial court erred by failing to properly instruct the jury on accident and remands the case to the trial court for a new trial, if the Commonwealth be so advised. Reversed and remanded.

# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 9th 

### day of December, 2014

. LaDawn Shrieves King, Appellant, against Record No. 1684-13-4 Circuit Court No. FE-2013-175 Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc Before the Full Court
On November 7, 2014 came the appellee, by the Atto rney General of Virginia, and filed a petition requesting that the Court set asid e the judgment rendered herein on Oc tober 28, 2014, and grant a rehearing en banc on the issue(s) raised in the petition. On consideration whereof, the petition for rehearing en banc is granted with rega rd to the issue(s) raised therein, the mandate entered herein on October 28, 2014 is stayed pending the decision of the Court en banc , and the appeal is reinstated on the docket of this Court. The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion pr eviously rendered by the Court in this matter. It is further ordered that the a ppellee shall file twelve addi tional copies of the appendix previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies of their brief (and the appendi x, if the party filing the a ppendix is represented by counsel) with the clerk of this Court.UNPUBLISHED-2- The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe Acrobat Portable Document Format (PDF). 1

A Copy, Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk

1 The guidelines for the creation and submissi on of a digital brief package can be found at www.courts.state.va.us, in the Court of Appeals s ection under “Resources and Reference Materials.”