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Present: Judges Humphreys, Felton and Kelsey

Argued at Salem, Virginia

Record No. 2676-02-3






NOVEMBER 18, 2003


Porter R. Graves, Jr., Judge

David B. Hargett (Hargett & Watson, PLC, on brief), for

Kathleen B. Martin, Assistant Attorney General (Jerry W.

Attorney General, on brief), for appellee.

The appellant, Jeffrey Neal Coleman, claims the trial court
erred by not suppressing

evidence seized during a search of a camper in which he claimed
to have a reasonable

expectation of privacy. The trial court also erred, Coleman
argues, by refusing jury instructions

that would have permitted the jury to conclude that he acted in
self-defense when he opened fire

into a crowd during a drive-by shooting. Finding Coleman’s
arguments meritless, we affirm.


On appeal, we review the evidence "in the light most
favorable" to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003). That principle

requires us to "discard the evidence of the accused in
conflict with that of the Commonwealth,

and regard as true all the credible evidence favorable to the
Commonwealth and all fair

inferences that may be drawn therefrom." Kelly v.
Commonwealth, 41 Va. App. 250, 254, 584

S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v.
Commonwealth, 26 Va. App. 335, 348,

494 S.E.2d 859, 866 (1998)) (internal quotation marks omitted).

Around 8:30 in the evening on May 11, 1998, Coleman met two men,
Shawn Lewis and

Donald D. Thomas, on Kelly Street in Harrisonburg to sell them
marijuana. Coleman, who was

accompanied by his wife and a friend, Wesley Tusing, handed the
men small bags containing the

marijuana. Without paying Coleman, both men "just took off
running with it." Coleman and the

others sat in the car for a few minutes, then drove to a house
owned by a friend, Keith Trumbo.

Inside Trumbo’s house, Coleman retrieved a "single shot
.22" that he placed in his car. After "a

couple of hours," the three went to another location where
Coleman retrieved a buried .30

caliber, semi-automatic assault rifle with a "flash
suppressor" for nighttime use.[2]
So armed,

Coleman told the others that they "were going to talk to
this dude that gave us a good deal


At approximately 11:00 that evening, Coleman, his wife, and
Tusing returned to

Harrisonburg. Coleman, high on marijuana and driving a different
car than earlier, placed the

assault rifle on "the driver’s seat right beside
him." Coleman and Tusing then picked up William

Heflin, dropped off Coleman’s wife, and went back to Kelly
Street. Once there, Coleman parked

the car and spotted a crowd of "probably 20 people"
standing next to the street. A few minutes

later, Coleman drove toward the crowd with his lights off and
placed the assault rifle "up on the

window and just started blasting," firing "12 to 15
rounds" in all. Coleman then "sped up" and

quickly left Harrisonburg.

After briefly returning to Trumbo’s house where Coleman’s
wife rejoined them,

Coleman, his wife, and Tusing left and "went to some
trailer up in the mountain." They arrived

at approximately 3:00 a.m. the next morning. The three waited at
the camper and "stashed" both

the .22 and the .30 caliber rifle. Four hours later they left
the camper and returned to Trumbo’s

house, where the police met them and placed Coleman under

At the police station, Coleman confessed to the shooting.
Claiming that he "didn’t plan

it," Coleman stated that he only "intended on getting
my money back." He admitted firing

"probably 10 times" at the men who had earlier stolen
his marijuana. The shooting "all

happened so fast," Coleman claimed. He stated that he saw
"one of ‘em that was running with

the pot and that’s when I started pulling the trigger."

Officer Al McDorman visited the camper at about 5:00 p.m. on May
12. Though a

locked chain crossed the logging road that approached the
camper, the camper did not have a

mailbox, any "no trespassing signs," locks on the
doors, or any signs indicating that the camper

was on private property. McDorman announced his presence and,
after hearing no reply, entered

the camper without a warrant. Inside, McDorman found a bed with
a bedspread, a kitchen table,

and a Bible. Near the kitchen, McDorman found a pair of pants
and a camouflage hat, while a

camouflage jacket lay on the bed. Under the mattress, McDorman
located a .22 rifle and, in

drawers under the bed, a .30 caliber rifle. Ammunition for the
.30 caliber rifle was located in a

"small green bag" near the entrance to the camper.

Before trial, Coleman moved to suppress the evidence seized in
the camper, claiming that

McDorman’s warrantless search of the premises violated his
Fourth Amendment rights. At the

suppression hearing, Betty Ritchie testified that she and her
husband owned the land and gave

her son permission to keep his "little camper" on the
property. Mrs. Ritchie did not know

Coleman and did not give him permission to be on the property or
to use her son’s camper. She

understood that her son used the camper for hunting, camping,
and cutting wood. The camper

was unlocked and "a lot" of people seemed to be in and
out of it. Mrs. Ritchie maintained a

locked cable across the road leading to the camper.

Her son, Anthony Ritchie, testified that he had occasionally
allowed Coleman and "a

bunch of people" to use the camper for "camping and to
grill out." Anthony, however, "hadn’t

talked to [Coleman] for a while before this happened" and
he "did not know he was staying up

there at the time." Anthony said he never gave Coleman
permission to "store guns" or "rifles" in

the camper. Anthony also understood he did not "have the
right to control who goes on that

property." "It’s not in my name," he explained.
His parents, he said, nevertheless did not "care

who I take up there."

The trial court denied the motion to suppress. Focusing both on
Coleman’s use of the

camper at the time he stashed his assault rifle there and the
timing of Officer McDorman’s search

ten hours later, the court found as a fact that "the
defendant’s own evidence shows that at the

time they weren’t living [there], they had not been given
permission to store things there, that

they were really just stopping by." For these reasons, the
court held, Coleman did not have a

"reasonable expectation of privacy in the premises"
and thus could not assert a Fourth

Amendment challenge to Officer McDorman’s search of the

Following the presentation of the evidence at trial, Coleman
requested that the court

instruct the jury that he acted in self-defense by shooting at
the crowd on Kelly Street. Finding

insufficient evidence to support Coleman’s request, the trial
court denied the proposed jury

instruction. The jury found Coleman guilty of two counts of
malicious wounding (Code

? 18.2-51.2) and two counts of use of a firearm while
committing a felony (Code ? 18.2-53.1).

The trial court then sentenced Coleman to 68 years in prison,
with no time suspended. Coleman

now appeals.


Though the ultimate question whether an officer’s conduct
violated the Fourth

Amendment triggers de novo scrutiny on appeal, the trial
court’s findings of historical fact bind

us due to the weight we give to the inferences drawn from those
facts by resident judges and

local law enforcement officers. Jackson v. Commonwealth, 41 Va.
App. 211, 222, 583 S.E.2d

780, 786 (2003) (en banc). Thus, we must give deference
to the factual findings of the trial court

and independently determine whether those findings satisfy the
requirements of the Fourth

Amendment. Slayton v. Commonwealth, 41 Va. App. 101, 105, 582
S.E.2d 448, 450 (2003)

(citation omitted).

In addition, the appellant must shoulder the burden of showing
that the trial court’s

decision "constituted reversible error." McGee v.
Commonwealth, 25 Va. App. 193, 197, 487

S.E.2d 259, 261 (1997) (en banc) (citations omitted).
"Absent clear evidence to the contrary in

the record, the judgment of a trial court comes to us on appeal
with a presumption that the law

was correctly applied to the facts." Craddock v.
Commonwealth, 40 Va. App. 539, 547, 580

S.E.2d 454, 458 (2003); Barkley v. Commonwealth, 39 Va. App.
682, 690, 576 S.E.2d 234, 238



To have standing to invoke the protections of the Fourth
Amendment, a defendant must

have a "legitimate expectation of privacy in the place
searched." Megel v. Commonwealth, 262

Va. 531, 534, 551 S.E.2d 638, 640 (2001) (citing Minnesota v.
Carter, 525 U.S. 83, 88 (1998),

and Rakas v. Illinois, 439 U.S. 128, 143 (1978)); McCracken v.
Commonwealth, 39 Va. App.

254, 260, 572 S.E.2d 493, 496 (2002) (en banc)
(recognizing that one without a justifiable

privacy expectation has "no standing to contest the entry
of the house"). The legitimacy of this

expectation depends not only on the person’s subjective
beliefs — society, too, must be "willing

to recognize that expectation as reasonable." Kyllo v.
United States, 533 U.S. 27, 33 (2001)

(quoting California v. Ciraolo, 476 U.S. 207, 211 (1986)).

While it is often said that the Fourth Amendment "protects
people, not places," Katz v.

United States, 389 U.S. 347, 351 (1967), it is equally true that
"the extent to which the Fourth

Amendment protects people may depend upon where those people
are," Carter, 525 U.S. at 88;

see also Sheler v. Commonwealth, 38 Va. App. 465, 476, 566
S.E.2d 203, 208 (2002) ("[W]e

must give effect to ‘our societal understanding that certain
areas deserve the most scrupulous

protection from government invasion.’" (quoting Oliver v.
United States, 466 U.S. 170, 178

(1984))). The protection of one’s home, for example, is at the
"very core" of the Fourth

Amendment. Kyllo, 533 U.S. at 31. Closely related is the privacy
interest of an "overnight

guest." Minnesota v. Olson, 495 U.S. 91, 96-97 (1990). But
one "merely present with the

consent of the householder" during a brief visit falls
outside the privacy interests protected by the

Fourth Amendment. Carter, 525 U.S. at 90.

That said, the Fourth Amendment draws few bright lines on this
subject. Instead, it

focuses on a combination of variables, including whether the
individual "has a possessory

interest" in the place searched, "whether he has the
right to exclude others from that place,

whether he has exhibited a subjective expectation that it would
remain free from governmental

invasion, whether he took normal precautions to maintain his
privacy and whether he was

legitimately on the premises." McCary v. Commonwealth, 36
Va. App. 27, 36, 548 S.E.2d 239,

243 (2001) (quoting McCoy v. Commonwealth, 2 Va. App. 309, 312,
343 S.E.2d 383, 385

(1986)) (internal quotation marks omitted).

The facts of this case support the trial court’s conclusion
that Coleman was, at best, a

casual visitor to the camper for four hours during the early
morning of May 12, 1998. Neither

the landowner nor the camper owner knew Coleman was there. They
had not given him

permission to store weapons in the camper. Coleman left the
camper ten hours before Officer

McDorman conducted his search at 5:00 p.m. that evening. No
evidence suggests that, upon

leaving the camper, Coleman intended to return (except, perhaps,
at some undetermined date to

retrieve his "stashed" assault rifle) or, for that
matter, that he had any right at any time to exclude

others from the camper. Though relevant, the trial court
correctly reasoned, Coleman’s use of

the camper on prior occasions "doesn’t really end the
inquiry" because the focus must be on the

defendant’s use of the camper at the time of Officer McDorman’s
search. Accepting the trial

court’s findings of historical fact, we agree that at the time
of the challenged search Coleman did

not have a reasonable expectation of privacy in the camper
sufficient to assert a Fourth

Amendment claim.


Coleman also argues that the trial court erred by not
instructing the jury on his claim of

self-defense. Because the requisite level of evidence does not
support Coleman’s proposed

instructions, we affirm the trial court’s decision to refuse

A trial court should instruct the jury, when requested to do so,
"on all principles of law

applicable to the pleadings and the evidence." Mouberry v.
Commonwealth, 39 Va. App. 576,

582, 575 S.E.2d 567, 569 (2003) (quoting Dowdy v. Commonwealth,
220 Va. 114, 116, 255

S.E.2d 506, 508 (1979), and Taylor v. Commonwealth, 186 Va. 587,
592, 43 S.E.2d 906, 909

(1947)). Refusal to give an instruction supported by "more
than a scintilla of evidence"

constitutes reversible error. Rhodes v. Commonwealth, 41 Va.
App. 195, 200, 583 S.E.2d 773,

775 (2003) (citing Commonwealth v. Donkor, 256 Va. 443, 445, 507
S.E.2d 75, 76 (1998)).

An "independent prerequisite" for a jury instruction,
the scintilla test focuses on whether

a factfinder could "rationally" accept the position
advocated by the instruction’s proponent.

Carter v. United States, 530 U.S. 255, 261 n.3 (2000) (quoting
Schmuck v. United States, 489

U.S. 705, 716 n.8 (1989)) (internal quotation marks omitted). On
appeal, therefore, we review

the record in the light most favorable to the proponent of the
instruction. Waters v.

Commonwealth, 39 Va. App. 72, 78, 569 S.E.2d 763, 766 (2002).

By raising a claim of self-defense, the defendant
"implicitly admits" that his use of

violence "was intentional and assumes the burden of
introducing evidence of justification or

excuse that raises a reasonable doubt in the minds of the
jurors." Commonwealth v. Sands, 262

Va. 724, 729, 553 S.E.2d 733, 736 (2001) (quoting McGhee v.
Commonwealth, 219 Va. 560,

562, 248 S.E.2d 808, 810 (1978)). To succeed in this affirmative
defense, the defendant must

reasonably believe that defending himself was necessary to avoid
"an imminent threatened

harm" that could not be avoided through any other adequate
means. Humphrey v.

Commonwealth, 37 Va. App. 36, 49, 553 S.E.2d 546, 552 (2001)
(quoting Buckley v. City of

Falls Church, 7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)).

To establish justifiable self-defense, the defendant must be
"free from fault in bringing on

the fray." Gilbert v. Commonwealth, 28 Va. App. 466, 472,
506 S.E.2d 543, 546 (1998).

Indeed, "the accused must be without fault ‘in the
minutest degree.’" Roger D. Groot, Criminal

Offenses and Defenses in Virginia 193 (5th ed. 2004) (citation
omitted); see also Adams v.

Commonwealth, 163 Va. 1053, 1058, 178 S.E. 29, 31 (1935); Hughes
v. Commonwealth, 39 Va.

App. 448, 464-65, 573 S.E.2d 324, 332 (2002).

If at fault, the defendant may still assert excusable
self-defense if the evidence shows he

abandoned the fight, retreated "as far as he safely can,"
but nonetheless found no other way to

"preserve his life or save himself from great bodily
harm." Dodson v. Commonwealth, 159 Va.

976, 979-80, 167 S.E. 260, 261 (1933) (emphasis in original)
(paraphrasing Vaiden v.

Commonwealth, 53 Va. (12 Gratt.) 717, 729 (1855)); see also
Connell v. Commonwealth, 34 Va.

App. 429, 437, 542 S.E.2d 49, 53 (2001) ("Once the accused
abandons the attack and retreats as

far as he or she safely can, he or she may kill his or her
adversary if there is ‘a reasonably

apparent necessity to preserve his [or her] own life or save
himself [or herself] from great bodily

harm.’" (quoting Bailey v. Commonwealth, 200 Va. 92, 96,
104 S.E.2d 28, 31 (1958))).

In this case, the defendant explained to police investigators
his actions and underlying

motivations this way:

Q: Were you looking when you shot or were you looking straight

ahead, driving, just . . . .

A: Yeah. Exactly . . . well no, I don’t know, it all happened
so fast.

I seen one of ‘em that was running with the pot and that’s

I started pulling the trigger and I guess I did start
watching the

road and it was over.

* * * * * * *

Q: Why did you shoot?

A: I seen one that stole my pot.

Q: You saw the guy that stole you, that ripped you off, and did
you just

go off? Do you, do you have a problem with that sometimes?

A: Yeah.

Q: Do you have a bad temper?

A: Oh yeah! It’s like you push a button in me and all of a
sudden you

got uncontrollable rage when normally I’m a calm, thinking

individual . . . .

* * * * * * *

Q: That’s the only thing that clicked that little button in
you was

a guy.

A: Yeah.

Q: that ripped you off.

A: Yeah! Yeah! Yeah!

At trial, Coleman mentioned for the first time that he believed
Shawn Lewis possessed a

handgun and was preparing to use it against Coleman. Coleman
admitted, however, he never

actually saw the handgun before opening fire on Lewis and the
crowd of bystanders. Coleman

also provided no explanation for why he did not simply drive
away if he feared Lewis might be


Taken in the light most favorable to Coleman, the evidence could
not lead a rational

factfinder to conclude that Coleman was faultless or that he
retreated from the alleged danger for

purposes of establishing either justifiable or excusable
self-defense. To settle a score from a

failed drug transaction, Coleman obtained a loaded assault rifle
fitted with a flash suppressor for

nighttime shooting and hunted down his victim with the obvious
intent to do harm. This whole

time, Coleman admitted, his attitude was "if I had to shoot
them, I was mad and I didn’t really

care, I would have." When he found his victim, Coleman
"started blasting" his assault rifle out

of an open car window into a crowd of twenty people. Though he
claims his victim may have

had a handgun, Coleman made no effort whatsoever to retreat from
the alleged danger. Instead,

he opened fire into a crowded sidewalk. "A man cannot go
a-gunning for an adversary and kill

him on the first appearance of resistance, and rely upon the
necessity of the killing as an excuse

therefor." Jordan v. Commonwealth, 219 Va. 852, 855-56, 252
S.E.2d 323, 325 (1979) (quoting

Sims v. Commonwealth, 134 Va. 736, 760, 115 S.E. 382, 390
(1922)) (internal quotation marks



Accepting the facts in the light most favorable to the
Commonwealth, Coleman failed to

demonstrate a legitimate privacy interest in the camper. The
trial court, therefore, did not err in

denying his motion to suppress. Viewing the evidence in the
light most favorable to Coleman,

he also failed to present a scintilla of evidence supporting the
proffered self-defense instructions.

As a result, the trial court correctly refused to instruct the
jury on this affirmative defense.




[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


[2]A flash
suppressor is a "piece that goes on the end of the gun to make less flash

the fire shoots out the barrel."