Susan Jacqueline Burns v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Duff and Hodges
Argued at Alexandria, Virginia
SUSAN JACQUELINE BURNS
MEMORANDUM OPINION * BY
v. Record No. 1459-99-4 JUDGE WILLIAM H. HODGES
MAY 30, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Paul E. Pepper, Assistant Public Defender,
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Susan Jacqueline Burns, appellant, appeals her conviction for
assault and battery. Appellant contends that the trial court
erred by applying an objective test, rather than subjective test,
in denying her claim of self-defense. For the following reasons,
we find no reversible error and affirm the conviction.
Facts
As Susie Wanzer left a CVS store, appellant kicked her in
the buttocks area. They exchanged words. Appellant grabbed
Wanzer's shirt and they began fighting. They fell to the ground
and Wanzer asked appellant to let go of her shirt. Wanzer was
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
unaware of bumping appellant, but said that if she had bumped
appellant, she apologized. CVS employees separated appellant
and Wanzer. Prior to this incident, Wanzer had never before
seen appellant.
At trial, appellant explained that she kicked Wanzer
because Wanzer had bumped her. Appellant explained that she
reacted the way she did because she had been homeless for about
five months, had been living on the streets and escaping the
cold by seeking refuge in twenty-four-hour restaurants, was
sleep deprived, and was on the verge of a nervous breakdown at
the time of the incident. During the months she was homeless,
appellant said she had been attacked fifteen or sixteen times,
and "felt she was a victim of discrimination because she was
homeless." Appellant said "that because of her physical and
mental condition," she realized that she had overreacted and was
sorry she kicked Wanzer.
During closing argument, defense counsel argued that
appellant kicked Wanzer in self-defense. Defense counsel argued
that appellant's lack of sleep and deteriorating mental health
led appellant to perceive Wanzer's bumping her as a threat to
her physical safety and that appellant kicked Wanzer in reaction
to this threat.
Discussion
"Self-defense is an affirmative defense which the accused
must prove by introducing sufficient evidence to raise a
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reasonable doubt about his guilt." Smith v. Commonwealth, 17
Va. App. 68, 71, 435 S.E.2d 414, 416 (1993). "The trier of fact
determines the weight of evidence in support of a claim of
self-defense." Gardner v. Commonwealth, 3 Va. App. 418, 426,
350 S.E.2d 229, 233 (1986). The test of self-defense is whether
the defendant reasonably feared death or serious bodily harm at
the hands of his victim, and not whether danger in fact existed.
See McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808,
810 (1978).
Appellant failed to present evidence of self-defense
sufficient to raise a reasonable doubt about her guilt.
Appellant testified that she kicked Wanzer because Wanzer bumped
her while leaving the CVS store. Appellant testified that she
kicked Wanzer because appellant was homeless, sleep deprived,
and on the verge of a nervous breakdown due to lack of sleep and
the attacks she had endured while she was homeless. Appellant
never claimed that she feared death or serious bodily harm from
Wanzer. Defense counsel made this claim during closing
argument, which does not constitute evidence. See Curtis v.
Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536, 540 (1987).
Although the trial court declined to apply the subjective
test, and instead applied an objective test when considering
appellant's self-defense claim, any error was harmless. To be
harmless, it must plainly appear from the record and the
evidence that the error did not affect the verdict. See Code
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§ 8.01-678; Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,
407 S.E.2d 910, 911 (1991) (en banc). Because there was no
evidence that appellant feared death or serious harm from
Wanzer, no evidence supported the affirmative defense of
self-defense. Therefore, even if the trial court had applied
the subjective test in considering appellant's self-defense
claim, the verdict would have been the same. Thus, any error
was harmless.
Affirmed.
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