Barbara Ann Cuffee v Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia

BARBARA ANN CUFFEE .
MEMORANDUM OPINION BY
v. Record No. 2589-97-1 JUDGE JAMES W. BENTON, UR.

SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge

Allan D. Zaleski (Weisberg & Zaleski, on
brief), for appellant.

Steven A. Witmer, Assistant Attorney General

(Mark L. Earley, Attorney General, on brief),
for appellee.

Barbara Ann Cuffee was indicted and tried by a jury on
charges of malicious wounding committed as a part of a mob, see
Code § 18.2-41, and malicious wounding of a law enforcement
officer, see Code § 18.2-51.1. The jury convicted Cuffee of
assault and battery. On this appeal, Cuffee contends that the
trial judge erred in refusing three jury instructions. Two of
the instructions concern self-defense, and the third addresses
witness credibility. For the reasons that follow, we affirm the
conviction.

IT.

At trial, the Commonwealth's evidence proved that Police

Officers Dahl and Mitcheltree responded to a call for assistance

from Jody Gifford, an animal control officer, who was at an

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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elementary schoolyard attempting to apprehend a stray dog.
Gifford observed a boy running with the dog through the crowd and
behind the school. 	When Gifford and Officer Dahl detained the
boy, a large group of people who were using the basketball courts
and recreation area began yelling and cursing at the officers.
Officer Dahl told the crowd to "Shut up." 	Cuffee, whom Officer
Dahl identified as having been one of the persons screaming and
cursing at her, responded "What are you talking to those kids
that way for?"
After Officer Dahl sat in her vehicle with the boy, she
heard an adult male say, "If she gets out of the car again, let's
just kick her ass." 	Officer Dahl testified that she exited the
car and said, "Did somebody say they wanted to kick my ass?" 	She
then approached Cuffee to have a conversation with her. 	Cuffee,
whom Officer Dahl believed was leading the crowd, told Officer
Dahl to "get out of her face." 	Officer Dahl responded "I'm not
in your face."
Cuffee's daughter then intervened. 	Officer Dahl testified
that Cuffee's daughter approached her and said, "bitch, you best
get out of my mama's face or I'm going to kick your ass." 	As
Officer Dahl turned to face Cuffee's daughter, Cuffee's daughter
hit Officer Dahl. 	When Officer Dahl grabbed Cuffee's daughter to
arrest her for assault, a general melee occurred. 	Officer Dahl
testified that Cuffee threatened to kill her, choked her, and
pushed her backwards.

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Cuffee disputed much of Officer Dahl's testimony. 	She
testified that after Officer Dahl yelled at the children to "shut
up" and put the boy in her vehicle, someone in the crowd said, "I
ought to beat that bitch's ass." 	Officer Dahl exited her
vehicle, unlatched her gun, and approached Cuffee. 	Cuffee told
Officer Dahl she didn't know why Officer Dahl unlatched her gun
and approached her. 	She also testified that she admonished
Officer Dahl for "talking to the kids . . . nasty" and
challenging the children who wanted to "beat [her] ass" to come
forward. 	Officer Dahl responded by pointing her finger in
Cuffee's face and loudly saying that she was challenging the
children because "she wanted to."
Cuffee testified that when her daughter told Officer Dahl to
get out of Cuffee's face, Officer Dahl grabbed Cuffee's daughter,
tried to "sling her," and struck Cuffee's daughter in the face.
The fight then began. 	Cuffee, fearing for her daughter's safety
and trying to stop the fight, grabbed her daughter and pinned her
against a vehicle. 	Cuffee testified that as Officer Dahl swung
over Cuffee to hit Cuffee's daughter, Officer Mitcheltree pulled
Cuffee away and told her she was under arrest. 	Officer
Mitcheltree made Cuffee place her hands on the police car.
Cuffee further testified that a bystander broke up the fight
between Officer Dahl and Cuffee's daughter. 	However, as the
bystander was walking her daughter away, Officer Dahl attacked
the daughter again. 	Cuffee jumped in front of Officer Dahl,

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grabbed her uniform "with no force," and pushed her back away
from Cuffee's daughter. 	Cuffee testified that she grabbed
Officer Dahl around the neck because Officer Dahl punched Cuffee
in the face. 	Other witnesses supported Cuffee's version of the
events.
At the conclusion of the evidence, the trial judge refused
three of Cuffee's proposed jury instructions. 	Instruction B
provided the following statement on self-defense:
In passing upon the danger, if any, to which
the Defendant, Barbara Cuffee[,] perceived,
you will consider the circumstances as they
reasonably appeared to her, and draw such
conclusions from these circumstances as she
could reasonably have drawn, situated as she
was at the time; and the Court instructs you
that the Defendant, Barbara Cuffee, is
entitled to be tried and judged by the facts
and circumstances as they reasonably appeared
to her.
Instruction C, also on the issue of self-defense, recited as
follows:
A person has the right to use reasonable
force to stop another who manifestly intends
and endeavors by violence or surprise to
commit an assault on his or her family.
Instruction D concerning witness credibility provided as follows:
Although one or more witnesses may positively
testify as to an alleged fact and although
the said testimony may not be contradicted by
other witnesses, the jury may altogether
disregard said testimony if you believe the
same to be untrue.
The jury acquitted Cuffee of malicious wounding as part of a
mob and convicted Cuffee of assault and battery, a
lesser-included offense of the charge of malicious wounding of

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the officer. 	On the jury's recommended sentence of three months
in jail and a $2,500 fine, the trial judge entered judgment on
that verdict.

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II.
"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) (citation omitted). 	Thus, when the
evidence is conflicting, "we must view the evidence with respect
to the refused instruction in the light most favorable to the
appellant." 	Caudill v. Commonwealth, 27 Va. App. 81, 85, 497
S.E.2d 513, 514 (1998). 	However, the principle is well
established that "[w]hen granted instructions fully and fairly
cover a principle of law, a trial [judge] does not abuse [his]
discretion in refusing another instruction related to the same
legal principle." 	Stockton v. Commonwealth, 227 Va. 124, 145,
314 S.E.2d 371, 384 (1984).
The trial judge instructed the jury as follows on the law of
self-defense: If you believe from the evidence that the
defendant was to some degree at fault in
provoking or bringing on the fight, and if
you further believe that when attacked:
(1) she retreated as far as she
safely could under the
circumstances
(2) in a good faith attempt to
abandon the fight; and
(3) made known her desire for peace
by word or act; and
(4) she reasonably feared, under
the circumstances as they appeared

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to her, that her daughter was in
danger of bodily harm; and
(5) she used no more force that was
reasonably necessary to protect her
daughter from the threatened harm,
then you shall find the defendant
not guilty;
and,
If you believe from the evidence that the
defendant was without fault in provoking or
bringing on the fight, and that the defendant
reasonably feared, under the circumstances as
they appeared to her, that her daughter was
in danger of harm, then the defendant had the
right to use such force as was reasonably
necessary to protect her daughter from the
threatened harm. 	If you further believe that
the defendant used no more force than was
reasonably necessary to protect her daughter
from the threatened harm, then you shall find
the defendant not guilty.
Cuffee argues that although those instructions accurately
state the relevant legal principles, they do not instruct the
jury on "her version of the case." 	We disagree. 	The
instructions that were given to the jury fully and fairly
informed the jury of each principle that is contained in the two
self-defense instructions proposed by Cuffee and refused by the
trial judge. 	Accordingly, the trial judge did not err in
refusing Cuffee's Instructions B and C. 	See Willis v.
Commonwealth, 10 Va. App. 430, 444, 393 S.E.2d 405, 412 (1990).
The trial judge also refused Cuffee's Instruction D in favor
of another instruction concerning credibility of the witnesses.
The trial judge instructed the jury as follows:
You are the judges of the facts, the
credibility of the witnesses, and the weight

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of the evidence. 	You may consider the
appearance and manner of the witnesses on the
stand, their intelligence, their opportunity
for knowing the truth and for having observed
the things about which they testified, their
interest in the outcome of the case, their
bias, and, if any have been shown, their
prior inconsistent statements, or whether
they have knowingly testified untruthfully as
to any material fact in the case.
You may not arbitrarily disregard
believable testimony of a witness. 	However,
after you have considered all the evidence in
the case, then you may accept or discard all
or part of the testimony of a witness as you
think proper.
You are entitled to use your common sense
in judging any testimony. 	From these things
and all the other circumstances of the case,
you may determine which witnesses are more
believable and weigh their testimony
accordingly.
While Cuffee's Instruction D would have explicitly informed
the jury that uncontradicted testimony of several witnesses
concerning a fact may be disregarded if the jury believed the
testimony to be untrue, the instruction that was given to the
jury does recite the same principle, albeit in a more general
manner. 	We are mindful that "[a] person accused of a crime is
entitled to instructions which present the grounds of [her]
defense from [her] point of view." 	Wade v. Commonwealth, 202 Va.
117, 123-24, 116 S.E.2d 99, 104 (1960). 	However, we find no
basis in the record to conclude that the trial judge's use of the
more general statement of the principle was prejudicial to
Cuffee.
Accordingly, we affirm the conviction.

Affirmed.
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