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MARCH 21, 2000

Record No. 0404-99-4





Thomas S. Kenny, Judge

(William D. Pickett, on brief), for appellant.
Appellant submitting on brief.

Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Present: Judges Willis, Bumgardner and Frank

Argued at Alexandria, Virginia


On appeal from his jury-trial conviction of
second degree murder, in violation of Code ? 18.2-32,
Joseph Dale Bowler contends (1) that the trial court erred in
refusing his proffered self-defense instruction, and (2) that the
evidence was insufficient to support his conviction. We find no
error and affirm the judgment of the trial court.

"On appeal, ‘we review the evidence in the
light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom.’" Archer
v. Commonwealth
, 26 Va. App. 1, 11, 492 S.E.2d 826, 831
(1997) (citation omitted).

On the morning of February 5, 1998, Bowler
knocked on a neighbor’s door and said there was a dead woman in
his apartment upstairs. His pants were bloody, and he requested
aid "to take something downstairs before the police"
arrived. The neighbor called the police. The first officer on the
scene found Bowler’s girlfriend, Ruby Kibler, lying dead just
inside Bowler’s apartment. She had been stabbed twice.

Bowler initially told the police that he heard
Kibler banging on the downstairs door and that upon opening the
door, he found her stabbed and bleeding from an attack by an
unknown assailant. He said that he carried her upstairs to his
apartment, where she died. Later, after the police pointed out
several inconsistencies in his story, Bowler admitted that he and
Kibler had been together in his apartment, that they had been
drinking heavily, and that they had begun to argue. He said that
she attacked him with a knife and they fought over the knife. He
said that in the struggle, they fell down the stairs, and Kibler
was wounded when she fell on the knife. Bowler said that he
passed out at the foot of the stairs and did not awake until the
next morning.

II. Jury Instruction

Bowler contends that the trial court erred in
refusing to instruct the jury on self-defense. He argues that his
proffered instruction was supported by credible evidence.

"We are bound by the principle that the
accused is entitled, on request, to have the jury instructed on a
lesser included offense [or affirmative defense] that is
supported by more than a ‘scintilla of evidence’ in the
record." Bunn v. Commonwealth, 21 Va. App. 593, 599,
466 S.E.2d 744, 746 (1996) (citation omitted). "Self-defense
is an affirmative defense which the accused must prove by
introducing sufficient evidence to raise a reasonable doubt about
his guilt." Smith v. Commonwealth, 17 Va. App. 68,
71, 435 S.E.2d 414, 416 (1993). "’In determining whether to
instruct the jury on a lesser-included offense [or affirmative
defense], the evidence must be viewed in the light most favorable
to the accused’s theory of the case.’" Hunt v.
, 25 Va. App. 395, 400, 488 S.E.2d 672, 674
(1997) (citation omitted).

Bowler relies on his assertion that Kibler
attacked him and they both fell down the stairs in the ensuing
struggle. He does not claim that he stabbed Kibler to protect
himself but asserts rather that she was stabbed accidentally.

Bowler’s original story, blaming an unknown
assailant, does not support a self-defense instruction. His
subsequent account supports an instruction on accident, which was
given. At trial, Bowler argued that he was entitled to a
self-defense instruction because: "[I]f [the jurors] accept
the fact that [Kibler] did, in fact, pull out a knife on [Bowler] and, as a result of pulling out the knife, he grabbed the knife
and plunged it in her, that’s self-defense. . . . I think from
the evidence that [the jurors] can accept the fact that Mrs.
Kibler picked up the knife." The trial court ruled that such
a theory presupposed that Bowler wrested the knife away from
Kibler and stabbed her, an assumption unsupported by the record.
The evidence supports no other conclusion.

"The defense that a killing was accidental
presents a different issue from a claim that a killing was done
in self-defense. . . . In making [a claim of self-defense] a
defendant implicitly admits the killing was intentional and
assumes the burden of introducing evidence of justification or
excuse that raises a reasonable doubt in the minds of
jurors." McGhee v. Commonwealth, 219 Va. 560, 562,
248 S.E.2d 808, 810 (1978). Bowler never contended that he
stabbed Kibler to defend himself. His assertion that she was
stabbed accidentally while falling down the stairs did not
support a self-defense instruction and that instruction was
properly refused.

We recognize that death may result accidentally
from action taken in self-defense. Under such circumstances,
defenses of accident and self-defense are not mutually exclusive
and instructions on both defenses should be given upon request. See
Farrow v. Commonwealth, 197 Va. 353, 89 S.E.2d 312 (1955);
Jones v. Commonwealth, 196 Va. 10, 82 S.E.2d 482 (1954); Braxton
v. Commonwealth
, 195 Va. 275, 77 S.E.2d 840 (1953); Valentine
v. Commonwealth
, 187 Va. 946, 48 S.E.2d 264 (1948). However,
the evidence in this case does not support a claim of
self-defense or the giving of a self-defense instruction.

III. Sufficiency of the

Bowler next contends that because no credible
evidence proved malice, the evidence was insufficient to support
a conviction for second degree murder.

"Where the sufficiency of the evidence is
challenged after conviction, it is our duty to consider it in the
light most favorable to the Commonwealth and give it all
reasonable inferences fairly deducible therefrom." Higginbotham
v. Commonwealth
, 216 Va. 349, 352, 218 S.E.2d 534, 537

"’The test of murder is malice. Every
malicious killing is murder either in the first or second degree
— the former if deliberate and premeditated, and the latter if
not.’" Wooden v. Commonwealth, 222 Va. 758, 762, 284
S.E.2d 811, 814 (1981) (citation omitted). "The trier of
fact may infer malice from the deliberate use of a deadly
weapon." Utz v. Commonwealth, 28 Va. App. 411, 415,
505 S.E.2d 380, 382 (1998). "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt." Coleman v.
, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

Rosetta Jones testified that Bowler and Kibler
argued about whether Kibler was going home to Washington, D.C.
She testified that Bowler angrily refused to allow Kibler to
leave. The medical evidence showed that Kibler suffered two deep
stab wounds. One wound perforated her left arm. The other
penetrated her chest to a depth of five or six inches and hit her
aorta. Although her body was found in Bowler’s apartment, there
was a pool of blood at the foot of the stairs, and bloodstains
were found on the walls of the stairwell. Bowler did not call for
help until Kibler was dead. He gave the police inconsistent
versions of the incident.

Sufficient evidence supports a finding that
Bowler stabbed Kibler. Such an act imputes malice. Under the
evidence, the jury could reasonably have believed that he stabbed
her and disbelieved that she died by accident. "The
credibility of the witnesses and the weight accorded the evidence
are matters solely for the fact finder who has the opportunity to
see and hear that evidence as it is presented." Sandoval
v. Commonwealth
, 20 Va. App. 133, 138, 455 S.E.2d 730, 732

The judgment of the trial court is affirmed.




[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.