COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Fulton and Ortiz

Argued at Norfolk, Virginia

MIQUEL SIRMIR JOHNSTON

MEMORANDUM OPINION* BY

v. Record No. 1761-22-1 CHIEF JUDGE MARLA GRAFF DECKER

MARCH 26, 2024

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

Christopher W. Hutton, Judge

Charles E. Haden for appellant.

Timothy J. Huffstutter, Assistant Attorney General (Jason S. 

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

Miquel Sirmir Johnston appeals his convictions for voluntary manslaughter, assault and 

battery of a family member, and unlawfully shooting into an occupied dwelling. See Code 

§§ 18.2-35, -57.2, -279. On appeal, he contends that the trial court abused its discretion by 

refusing to give one of his proffered jury instructions. Johnston also challenges the sufficiency 

of the evidence to sustain his convictions. For the following reasons, we affirm the convictions.

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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BACKGROUND1

On May 26, 2018, Johnston and his girlfriend, Tytianna Staton-Fuller (Staton-Fuller) had a 

physical altercation that ultimately led to him fatally shooting her father. A grand jury indicted 

Johnston for first-degree murder, assault and battery of a family member, maliciously discharging a 

firearm within an occupied dwelling, and using a firearm while committing murder. 

At the ensuing jury trial, several witnesses testified, including Staton-Fuller and Johnston. 

The two gave fundamentally the same version of events of that day. In May 2018, Staton-Fuller 

and Johnston were in a romantic relationship and shared an apartment. On the day of the shooting, 

the couple had an argument that escalated into physical violence. After the initial confrontation, 

Staton-Fuller called her father, Lawrence Fuller (Fuller), who went to the apartment. When he

arrived, Johnston was in the bedroom. Fuller went to the bedroom, where Johnston shot him. 

The testimony given by Staton-Fuller and Johnston differed significantly, however, about 

Johnston’s state-of-mind at the time of the shooting. Staton-Fuller described Johnston as angry and 

adversarial. She stated that when she told Johnston that her father was coming to pick her up, 

Johnston replied that he was “ready and waiting for him.” A friend who was on the phone with 

Staton-Fuller at that time testified that she heard Johnston say, “I don’t give a fuck, he can come, 

I’m ready.” 

According to Staton-Fuller, after her father arrived, he announced that he “wanted to talk” to 

Johnston and knocked firmly on the bedroom door. Staton-Fuller explained that the knock caused 

the door, which was closed but not latched, to swing partly open. When the door opened, 

1

“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 instruction,” in this case, Johnston. 

Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019) (quoting Williams v. Commonwealth, 

64 Va. App. 240, 244 (2015)). At the same time, when reviewing the sufficiency of the 

evidence, “we view the facts in the light most favorable to the Commonwealth, the prevailing 

party at trial.” Washington v. Commonwealth, 75 Va. App. 606, 612 n.1 (2022). 
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Staton-Fuller heard gunshots as Johnston shot her father. She and her father fled the apartment, but 

he collapsed outside on the grass. She testified that she went back into the apartment to get a towel 

to hold on the bleeding gunshot wound. According to Staton-Fuller, when she went back inside the 

apartment, Johnston told her that he had shot her father “[b]ecause he was in [his] house.” 

Unlike Staton-Fuller’s version, Johnston testified that he shot Fuller because he was afraid 

of him. Johnston said that Staton-Fuller told him that her father had guns and was “coming over to 

fuck [Johnston] up.” He testified that he was afraid because he knew Fuller could be violent. He 

explained that before Fuller arrived, he tried to get dressed, pack clothes, and leave. Before he 

could finish, he heard Fuller enter the apartment and loudly ask “[w]here the fuck is he.” “Seconds 

later,” Fuller “barged into” the bedroom. Johnston explained that when the bedroom door opened, 

he drew his handgun and fired two shots at the door “[t]o protect” himself, even though he did not 

see Fuller with a weapon. He suggested that he was startled and afraid that Fuller would hurt or kill 

him, particularly given Staton-Fuller’s earlier statement that her father had a gun. According to 

Johnston, he did not want to shoot Fuller but felt like he had no choice. 

Johnston stayed in the apartment and waited for police. After police officers arrived, they

recovered a handgun and a magazine from the bedroom floor. Fuller ultimately died of a gunshot 

wound to the chest. 

At the close of the Commonwealth’s case-in-chief and again after the close of its

case-in-rebuttal, Johnston made motions to strike the evidence. The trial court denied the motions. 

During the jury instruction conference, Johnston proposed the following instruction: “If you 

find from a consideration of all of the evidence in the case that the defendant’s claim of self-defense 

creates a reasonable doubt that he committed the offense, then you shall find him not guilty.”

Concluding that other instructions adequately “addressed” the issue, the trial court declined to give 

the proposed instruction. 
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The trial court instructed the jury that it had to consider the proof of the elements of each 

charged offense and must acquit Johnston unless the Commonwealth proved every element 

beyond a reasonable doubt. In addition, the court gave an instruction on self-defense. It told the 

jury that if it believed that Johnston acted in self-defense, it was required to find him not guilty. 

The trial court also enumerated the elements of first-degree murder and the lesser-included 

offenses of second-degree murder and voluntary manslaughter. 

The jury convicted Johnston of voluntary manslaughter, assault and battery of a family 

member, unlawfully discharging a firearm in an occupied dwelling, and using a firearm while 

committing murder. Given the voluntary manslaughter verdict, the trial court set aside the 

conviction for use of a firearm in the commission of murder. The court sentenced Johnston to a 

total of fifteen years and twelve months with one year suspended. 

ANALYSIS

On appeal, Johnston challenges the trial court’s refusal to give his proposed jury 

instruction about self-defense and reasonable doubt. He also argues that the evidence was 

insufficient to support the convictions. 

I. Jury Instruction

Johnston contends that the trial court erred by refusing to specifically instruct the jury 

that if it found that his claim of self-defense created a reasonable doubt that he committed the 

offenses, it had to acquit him. He takes issue with the trial court rejecting his proposed 

combined instruction. 

This Court reviews a trial court’s decisions with regard to giving and denying requested 

jury instructions for abuse of discretion. Conley v. Commonwealth, 74 Va. App. 658, 675 

(2022). The appellate court’s “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 
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raises.’” Id. at 674-75 (quoting Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019)). In 

reviewing “the propriety of a particular instruction, we look to the instructions as a whole.”

Graves v. Commonwealth, 65 Va. App. 702, 707 (2016). “If the principles set forth in a 

proposed instruction are fully and fairly covered in other instructions that have been granted, a 

trial court does not abuse its discretion in refusing to grant a repetitious instruction.” Fahringer, 

70 Va. App. at 211 (quoting Joseph v. Commonwealth, 249 Va. 78, 90 (1995)). 

Here, when instructing the jury, the trial court stated that Johnston was presumed 

innocent and could not be convicted unless the Commonwealth proved every element of each of

the crimes “beyond a reasonable doubt.” The court also instructed the jury on self-defense and 

provided that the jury must find Johnston not guilty if it believed that he acted in self-defense. In 

addition, the jury was informed that if it had a reasonable doubt as to the grade of homicide, it 

“must resolve that doubt in favor of the defendant.” These jury instructions used the language of 

the Model Jury Instructions. See Model Jury Instrs.—Crim. Nos. 2.100, 33.720, 33.800, 33.810; 

see, e.g., Walker v. Commonwealth, ___ Va. ___, ___ (June 1, 2023) (citing model jury 

instruction with approval).

Johnston acknowledges that the trial court properly instructed the jury on reasonable 

doubt and self-defense but argues that it “failed to explicitly inform the jury that the concept of 

reasonable doubt applied to [his] claim of self-defense.” Based on the trial court’s instructions, 

however, the jury knew that if it had any reasonable doubt about Johnston’s guilt of any degree 

of homicide, it was required to acquit him of that offense, an argument that defense counsel 

made to the jury. The trial court also properly instructed the jury about self-defense and directed 

that the jury had to find Johnston not guilty of any homicide offense if it found that he acted in 

self-defense.
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The jury was able to consider these instructions together and conclude that they required 

it to acquit Johnston if it found reasonable doubt based on self-defense. See Patrick v. 

Commonwealth, 50 Va. App. 650, 654 (2007) (“[It] is the duty of the jury to consider the 

instructions as a whole . . . .” (alteration in original) (quoting Rollston v. Commonwealth, 11 

Va. App. 535, 541 (1991))). In short, the trial court’s separate instructions on reasonable doubt 

and self-defense “fully and fairly” conveyed the substance of Johnston’s proposed instruction. 

See Fahringer, 70 Va. App. at 211. Further, the proffered instruction was repetitious, and as 

such the trial court did not abuse its discretion by refusing to give it. See Joseph, 249 Va. at 90

(“[A] trial court does not abuse its discretion in refusing to grant a repetitious instruction.”). 

II. Sufficiency of the Evidence

Johnston contends that the evidence was insufficient to support his convictions. He 

suggests that the Commonwealth failed to exclude the possibility that he acted in self-defense. 

“When reviewing the sufficiency 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.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) 

(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). In conducting this review, “[a]n 

appellate court does not ‘ask itself whether it believes that the evidence at the trial established 

guilt beyond a reasonable doubt.’” Commonwealth v. Barney, ___ Va. ___, ___ (Mar. 16, 2023)

(alteration in original) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). Instead, 

“[t]he only ‘relevant question is, after reviewing the evidence in the light most favorable to the 

prosecution, whether any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.’” Id. at ___ (quoting Sullivan v. Commonwealth, 280 Va. 672, 

676 (2010)). “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 
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reached by the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v. 

Commonwealth, 69 Va. App. 149, 161 (2018)).

In conducting our review, this Court likewise gives deference to the fact finder’s 

assessment of witness credibility. “Determining the ‘credibility of the witnesses and the weight 

of the evidence’ are tasks left ‘solely [to] the trier of fact’ unless those determinations are 

‘plainly wrong or without evidence to support [them].’” Nelson v. Commonwealth, 73 Va. App. 

617, 622 (2021) (alterations in original) (quoting Wactor v. Commonwealth, 38 Va. App. 375, 

380 (2002)). This is so because the fact finder, in this case the jury, “has the unique opportunity 

to observe the demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 

Va. App. 512, 525 (2015) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). “The 

trier of fact is ‘free to believe or disbelieve, in part or in whole, the testimony of any witness.’” 

Washington v. Commonwealth, 75 Va. App. 606, 616 (2022) (quoting Bazemore v. 

Commonwealth, 42 Va. App. 203, 213 (2004) (en banc)). “Similarly, ‘[i]n its role of judging 

witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the 

accused and to conclude that the accused is lying to conceal his guilt.’” Id. (alteration in 

original) (quoting Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011)).

It is under this well-established standard of review that we consider Johnston’s challenge 

to his convictions. He argues that the evidence did not exclude his hypothesis that he shot Fuller 

in self-defense to repel a potential attack. 

The jury was required to determine Johnston’s state of mind at the time of the shooting. 

See, e.g., Dandridge v. Commonwealth, 72 Va. App. 669, 681-82 (2021) (explaining that a 

malicious homicide is murder and an intentional killing done without malice in the heat of 

passion is voluntary manslaughter). Consistent with determining state of mind, the jury also had 
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to decide whether Johnston acted out of fear for his safety. See, e.g., Hines v. Commonwealth, 

292 Va. 674, 679 (2016). 

If the jury determined that Johnston shot Fuller out of fear, it was tasked with deciding 

whether Johnston acted in self-defense. There are specific requirements to meet this affirmative 

defense. To support a claim of self-defense, an accused must show that “he reasonably feared 

death or serious bodily harm at the hands of his victim.” Id. The defense also requires a finding 

that the degree of force used was “necessary to repel the aggressor.” Id. (involving a 

self-defense claim raised by a defendant attacked in his own home); see also Peeples v. 

Commonwealth, 30 Va. App. 626, 635 (1999) (en banc) (explaining that the force used must be 

reasonable in relation to the threatened harm). In addition, someone claiming self-defense must 

establish “‘that he was in imminent danger of harm’ by showing ‘an overt act or other 

circumstance that afford[ed] an immediate threat to safety.’” Jones v. Commonwealth, 71 

Va. App. 70, 86 (2019) (quoting Carter v. Commonwealth, 293 Va. 537, 544 (2017)). “An overt 

act is an act suggesting present danger which ‘afford[s] a reasonable ground for believing there is 

a design . . . to do some serious bodily harm, and imminent danger of carrying such design into 

immediate execution.’” Id. (alterations in original) (quoting Commonwealth v. Sands, 262 Va. 

724, 729 (2001)). “[B]are fear that a person intends to inflict serious bodily injury on the 

accused, however well-grounded,” is insufficient to support a claim of self-defense. Id.

(alteration in original) (quoting Yarborough v. Commonwealth, 217 Va. 971, 975 (1977)). 

Finally, “[w]hether an accused prove[d] circumstances sufficient to create a reasonable doubt 

that he acted in self-defense is a question of fact.” Meade v. Commonwealth, 74 Va. App. 796, 

807 (2022) (quoting Bell v. Commonwealth, 66 Va. App. 479, 486 (2016)). See generally Maust 

v. Commonwealth, 77 Va. App. 687, 700 (2023) (en banc) (“[W]hether an alternate hypothesis of 

innocence is reasonable is a question of fact and, therefore, is binding on [this Court] unless 
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plainly wrong.” (second alteration in original) (quoting Wood v. Commonwealth, 57 Va. App. 

286, 306 (2010))). 

Johnston argues that the record compels the conclusion that he acted in self-defense when 

he shot Fuller. This argument relies almost entirely on Johnston’s own testimony. Staton-Fuller 

testified to a materially different version of the relevant events, and the jury had the authority to 

decide which version to believe. See Nelson, 73 Va. App. at 622.

Together with weighing the conflicting testimony of Staton-Fuller and Johnston, the jury 

was responsible for determining whether Johnston reasonably feared imminent death or serious 

bodily injury, whether an “overt act or other circumstances” caused that fear, and whether his 

fear was sufficient to justify the use of deadly force against the victim. See, e.g., Dandridge, 72 

Va. App. at 684; Jones, 71 Va. App. at 86. Viewing the evidence in the light most favorable to 

the Commonwealth, it provides no basis to disturb the jury’s conclusion that Johnston did not act 

in self-defense. 

Notably, Staton-Fuller testified that she told Johnston only that her father was coming to 

pick her up, in contrast to Johnston’s testimony that she threatened that her father would hurt 

him. Staton-Fuller specifically denied asking her father to harm Johnston.2 Unlike Johnston’s 

claim that he so feared Fuller that he attempted to leave the apartment, Staton-Fuller testified that 

Johnston told her that Fuller could come because he was “ready and waiting for him.” A second 

witness who was on the phone with Staton-Fuller testified that she heard Johnston say he was 

“ready” for Fuller. Staton-Fuller testified that her father announced his intention to speak with 

2 The record does not support Johnston’s claim that Staton-Fuller “acknowledged” at trial 

that she told her father that she wanted him to “get” Johnston because Johnston had “put his 

hands on” her. Defense counsel asked Staton-Fuller whether she told her father that Johnston 

“put hands on me, I want you to get him.” Staton-Fuller responded, “I, necessarily, didn’t say 

that but I did tell him [that Johnston] put his hands on me.” She stated that she was crying and 

her father was angry. She did not, however, acknowledge telling him to “get” Johnston.
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Johnston and knocked on the bedroom door, rather than angrily barging into the bedroom 

without notice. Additionally, Staton-Fuller said that Johnston told her that he shot Fuller simply 

because Fuller was “in [Johnston’s] house,” not because he feared for his safety. Her testimony 

provides a basis for finding three key things: that Johnston did not have a reasonable fear of 

imminent death or serious bodily injury, that there was no “overt act” or other circumstance 

causing such a fear, and that using deadly force was not warranted or the only way to repel 

Fuller. Supporting this interpretation of events are the facts that Johnston fired twice and Fuller 

was unarmed. 

For these reasons, the record supports the jury’s determination that Johnston did not act in 

self-defense. Consequently, the evidence was sufficient to prove voluntary manslaughter and 

unlawful discharge of a firearm in an occupied building.3

CONCLUSION

The trial court did not err by refusing to separately instruct the jury that it had to acquit 

him if it found that his claim of self-defense created a reasonable doubt that he committed the 

offenses. Further, the evidence, viewed in the light most favorable to the Commonwealth, does 

not support Johnston’s claim that he shot Fuller in self-defense. Instead, it contains sufficient 

evidence to support the convictions for voluntary manslaughter and unlawful discharge of a 

firearm in an occupied dwelling. Accordingly, we affirm.

Affirmed.

3 Although Johnston’s first assignment of error challenges his conviction for assault and 

battery of a family member, he presents no argument or legal authority in support of that 

contention. Accordingly, that argument is waived, and we do not consider it. See Rule 

5A:20(e); see also Conley, 74 Va. App. at 681.