COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and 

 Bumgardner 

Argued at Alexandria, Virginia 

PAUL E. ALLEN 

 MEMORANDUM OPINION* BY 

v. Record No. 0584-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 3, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Carleton Penn, Judge Designate 

 Elwood Earl Sanders, Jr., Director 

Capital/Appellate Services (Public Defender 

Commission, on briefs), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Paul E. Allen (appellant) appeals his conviction for 

brandishing a firearm on the basis that the court improperly 

instructed the jury on the burden of proof for his claim of 

self-defense. Finding no error, we affirm. 

 The facts which are material to the issue on appeal follow. 

Paul Sweeny (Paul) held a note on appellant's house and 

foreclosed on the note when appellant fell substantially behind 

in the payments. Paul gave appellant notice to vacate the house, 

and went to inspect the house with his brother, Charles Sweeny 

(Charles), and a friend, Dale Toler, on February 8, 1996. In the 

course of trying to conduct the inspection of the house, 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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appellant pulled out a handgun and pointed the gun at Paul, 

Charles and Toler, and the three fled in their vehicles. 

Appellant was charged with brandishing a firearm in violation of 

Code § 18.2-282. 

 Appellant advanced a defense of self-defense at trial. He 

testified that before Paul and Toler arrived at the house, 

Charles approached him with a knife-like object, told him, "I'm 

your worst nightmare," and threatened to mutilate him. Appellant 

testified that Paul and Toler arrived at the house in a vehicle 

and that he told them to leave. Appellant stated that he grabbed 

a plastic toy pistol from his car and scared Paul, Charles and 

Toler away with it. Appellant stated that the incident left him 

"terrified." 

 The court instructed the jury to consider the instructions 

as a whole. It also instructed the jury that they should return 

a verdict of not guilty unless the Commonwealth proved each 

element of the crime beyond a reasonable doubt and that, "There's 

no burden on the Defendant to produce any evidence." The court 

also instructed the jury on the law of self-defense: 

 If you believe from the evidence that the 

Defendant was without fault in provoking or 

bringing on the difficulty and that the 

Defendant reasonably feared under the 

circumstances as they appeared to him that he 

was in danger of harm, then the Defendant had 

the right to use such force as was reasonably 

necessary to protect himself from threatened 

harm. 

 If you further believe that the 

Defendant used no more force than was 

reasonably necessary to protect himself from 

the threatened harm, then you shall find the 
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Defendant not guilty. 

 

 Appellant asked the court to provide the following 

instruction to the jury: 

 In relying on a plea of self-defense, there 

is no burden upon Mr. Allen to establish such 

a defense beyond a reasonable doubt, nor even 

by the greater weight of the evidence. If 

after having considered all the evidence, you 

entertain a reasonable doubt whether or not 

Mr. Allen acted in self-defense, you must 

find him not guilty. 

The court refused to give the proffered instruction. The jury 

returned a verdict of guilty. 

 Appellant contends that the trial court erred in failing to 

instruct the jury that he bore no burden to prove self-defense by 

a preponderance of the evidence. "A reviewing 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 raises.'" Darnell v. 

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) 

(quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 

858 (1982)). 

 Where the evidence supports the theories of both the defense 

and the Commonwealth, "the trial judge is required to give 

requested instructions covering both theories." Diffendal v. 

Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24, 26 (1989) 

(citing Jackson v. Commonwealth, 96 Va. 107, 114, 30 S.E. 452, 

454 (1898)). In accordance with this well established principle, 

the trial court properly instructed the jury on appellant's 
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theory of self-defense. In asserting a defense of self-defense, 

a defendant has no burden to prove self-defense beyond a 

reasonable doubt or even by a preponderance of the evidence. 

Hale v. Commonwealth, 165 Va. 808, 814, 183 S.E. 180, 183 (1936). 

 Rather, a defendant merely "assumes the burden of introducing 

evidence of justification or excuse that raises a reasonable 

doubt in the minds of the jurors." McGhee v. Commonwealth, 219 

Va. 560, 562, 248 S.E.2d 808, 810 (1978). 

 As the court instructed the jury, the jury must "consider 

the instructions as a whole and in the light of the evidence 

applicable to the issues presented." Rollston v. Commonwealth, 

11 Va. App. 535, 541, 399 S.E.2d 823, 826 (1991). Before 

instructing the jury on the law of self-defense, the court 

specifically instructed the jury that, "There's no burden on the 

Defendant to produce any evidence." It also instructed the jury 

on the presumption of innocence and the Commonwealth's burden to 

prove each element of the crime beyond a reasonable doubt. 

Because the trial court correctly instructed the jury on the 

precise principle of law requested by the defendant, it properly 

refused to give a second instruction on the same principle. 

Wilson v. Commonwealth, 25 Va. App. 263, 275, 487 S.E.2d 857, 863 

(1997) (citing Cirios v. Commonwealth, 7 Va. App. 292, 303-04, 

373 S.E.2d 164, 170 (1988)); Diffendal, 8 Va. App. at 423, 382 

S.E.2d at 27 (citing Agostini v. Commonwealth, 136 Va. 658, 663, 

116 S.E. 384, 385 (1923)). Therefore, we affirm appellant's 
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conviction. 

 Affirmed.