Akbar Abdul Karim Bilal v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
AKBAR ABDUL KARIM BILAL
MEMORANDUM OPINION * BY
v. Record No. 0772-01-4 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Jeanne E. Klapps (Michael C. Sprano,
Assistant Public Defender; Office of the
Public Defender, on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Akbar Abdul Karim Bilal was convicted in a jury trial of
assault and battery. On appeal, he contends the trial court
erred in refusing to give his requested instruction on mutual
combat to the jury. Finding no error, we affirm the conviction.
I. BACKGROUND
On September 5, 2000, Bilal returned to his home with his
wife and grandson. Upon his arrival, he encountered his
daughter's boyfriend, Ahmad Miles, outside of the apartment
building.
Miles, a witness for the Commonwealth, testified Bilal
approached him and accused him of keying his car and disrespecting
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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his wife. Miles stated he denied keying Bilal's car and
disrespecting his wife and started to walk away from the apartment
building, but Bilal grabbed him by the side of the head, slammed
him against a wall and mailbox several times, and shoved him into
some bushes, causing him to fall on his back. According to Miles,
who, at five feet seven inches tall and one hundred and twenty
pounds in weight, was "considerably smaller" than Bilal, Bilal
then sat on his chest, pinning his arms on the ground with his
knees, and punched him in the head and face approximately seven
times. Miles testified that, while on top of him, Bilal
threatened to kill him and told him to never "mess with [his]
family again." According to Miles, Bilal then got off of him, at
which point Miles jumped up and ran away from Bilal.
Miles testified he suffered a severe cut on his ear and had a
tooth knocked out during the altercation. Miles further testified
he never struck or threatened to strike Bilal and never gave Bilal
permission to strike or otherwise attack him.
The police officer who responded to the incident, testified
Miles was bleeding from the wound where his tooth had been knocked
out and from his ear. The officer further testified he observed
no injuries to Bilal.
Karimah Rasheedah Bilal, Bilal's wife, testified on behalf of
her husband. She stated that, when her husband approached the
apartment building, Miles started talking to him and an argument
ensued. According to Mrs. Bilal, Miles "started gesturing . . .
with his hands, and he was . . . approaching, and he got very
close up on [Bilal], swinging and gesturing his hands." Mrs.
Bilal stated Miles then shoved Bilal with both hands and
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subsequently grabbed him by the shoulders. Bilal then grabbed
Miles and the two men, according to Mrs. Bilal, struggled "in
front of the building, and down the stairs, and . . . through a
briar patch," at which point they fell, with Bilal landing on top
of Miles. Mrs. Bilal testified Bilal told Miles to calm down and
that "he really didn't want this type of exchange to happen."
After approximately three minutes, the two men got up and Miles
went to the parking lot, where, according to Mrs. Bilal, "he
continued to scream obscenities" at them. Mrs. Bilal testified
Bilal never punched Miles or threw him against a wall or mailbox.
Bilal was charged with unlawful wounding and tried before a
jury. Following the presentation of evidence at trial, the jury
was instructed on both unlawful wounding and the lesser-included
offense of assault and battery. Bilal, who did not testify at
trial, proffered three jury instructions propounding his
alternative theories of defense: self-defense without fault,
self-defense with fault, and mutual combat. The trial court
granted Bilal's instruction on self-defense without fault but
denied the other two.
Bilal's proposed instruction on mutual combat, Instruction M,
read as follows:
If you believe from the evidence that
Akbar Bilal and Ahmad Miles were involved in
mutual combat, then you shall find Mr. Bilal
not guilty. In order for combat to have been
mutual it must have been voluntary and
mutually entered into by both parties.
In denying Instruction M, the trial court ruled it was legally
inappropriate and unsupported by the evidence.
The jury subsequently found Bilal guilty of the
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lesser-included offense of assault and battery, and this appeal
followed.
II. ANALYSIS
The sole issue on appeal is whether the trial court erred in
refusing to give Instruction M to the jury.
"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)). "A defendant is entitled to
have the jury instructed only on those theories of the case that
are supported by evidence." Connell v. Commonwealth, 34 Va. App.
429, 436, 542 S.E.2d 49, 52 (2001). "[A]n instruction is proper
only if supported by more than a scintilla of evidence."
Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736
(2001). In reviewing a trial court's refusal to give a requested
instruction, "we view the evidence in the light most favorable to
the proponent of the instruction." Turner v. Commonwealth, 23
Va. App. 270, 275, 476 S.E.2d 504, 507 (1996), aff'd, 255 Va. 1,
492 S.E.2d 447 (1997).
On appeal, Bilal argues the requested instruction is proper
because it propounds a legally valid defense to assault and
battery and is supported by the evidence. He maintains that, on
the basis of his wife's testimony at trial, "[t]here was more than
a mere scintilla of evidence in this case that the complaining
witness consented to being grabbed and pushed by the appellant."
Thus, he asserts, the trial court erred in refusing to grant
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Instruction M.
Assuming, without deciding, that mutual combat may be a
defense to a charge of assault and battery, we hold nonetheless
that the evidence presented in this case, even viewed in the light
most favorable to Bilal, does not warrant a mutual combat
instruction. In particular, the record contains no evidence that
Miles and Bilal were engaged in mutual combat.
"For combat to be 'mutual,' it must have been voluntarily
and mutually entered into by both . . . parties to the affray."
Lynn v. Commonwealth, 27 Va. App. 336, 356, 499 S.E.2d 1, 10
(1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999). Here, Bilal's
evidence clearly established that Bilal did not enter into the
physical confrontation with Miles mutually or voluntarily. Mrs.
Bilal testified the altercation started when Miles shoved and
then grabbed Bilal. Following that attack, the two men struggled
"in front of the building, and down the stairs, and . . . through
a briar patch," at which point Bilal ended up on top of Miles.
Bilal then attempted to calm Miles and end the confrontation,
telling Miles that "he really didn't want this type of exchange
to happen."
The only reasonable conclusion that can be drawn from this
evidence is that Bilal did not willingly enter into the affray,
but did so solely to defend himself after being shoved and
grabbed by Miles. As we noted in Smith v. Commonwealth, 17
Va. App. 68, 72-73, 435 S.E.2d 414, 417 (1993) (quoting Harper v.
Commonwealth, 165 Va. 816, 820, 183 S.E. 171, 173 (1936)):
"One who is assaulted may and usually does
defend himself, but the ensuing struggle
cannot be accurately described as a mutual
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combat." Otherwise, "every fight would be a
mutual combat."
Hence, the evidence fails to support Bilal's theory of
mutual combat. We conclude, therefore, that the trial court did
not err in refusing to give Instruction M to the jury. See Lea v.
Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479-80 (1993)
(holding that "[a]n instruction that is not supported by the
evidence . . . is properly refused").
Accordingly, we affirm Bilal's conviction.
Affirmed.
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