affirmative defense in Virginia

2025“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Hughes v. Commonwealth, 39 Va. App. 448, 464 (2002) (quoting Smith v. Commonwealth, 17 Va. App. 68, 71 (1993)).

2025“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Hughes v. Commonwealth, 39 Va. App. 448, 464 (2002) (quoting Smith v. Commonwealth, 17 Va. App. 68, 71 (1993)).

2018In fact, Code § 18.2-280(D) states that the statute does not apply to any “person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property, or is otherwise specifically authorized by law.” -9- or fire a firearm, as appellant was “struck almost instantly several times” and then “an unknown person” fired a weapon3 and “undoubtedly there’s firing coming from the vehicle as well, but [the video does not show] the timeline in which that occurred.” Appellant also argued there was no evidence as to why the shooting occurred or “who started it.” Sel

2016Analysis “Self-defense is an affirmative defense ... and in making such a plea, 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 the jurors.’ ” Commonwealth v. Cary, 271 Va. 87, 99 , 623 S.E.2d 906, 912 (2006) (quoting McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978)).

2025“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Meade v. Commonwealth, 74 - 10 - Va. App. 796, 806 (2022) (quoting Hughes v. Commonwealth, 39 Va. App. 448, 464 (2002)).

2025“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt.” Hughes v. Commonwealth, 39 Va. App. 448, 464 (2002) (quoting Smith v. Commonwealth, 17 Va. App. 68, 71 (1993)).

2025“Self-defense is an affirmative defense . . . and in making such a plea, 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 the jurors.’” Bell v. Commonwealth, 66 Va. App. 479, 486 (2016) (alteration in original) (quoting Commonwealth v. -6- Cary, 271 Va. 87, 99 (2006)); see also McGhee v. Commonwealth, 219 Va. 560, 562 (1978) (same).

2025“Self-defense is an affirmative defense to a charge of murder, and in making such a plea, 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 the jurors.’” Sands, 262 Va. at 729 (quoting McGhee v. Commonwealth, 219 Va. 560, 562 (1978)).

2025“Self-defense is an affirmative defense . . . and in making such a plea, 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 the jurors.’” Commonwealth - 12 - v. Cary, 271 Va. 87, 99 (2006) (quoting Commonwealth v. Sands, 262 Va. 724, 729 (2001)).

2025“Self-defense is an affirmative defense to a charge of murder, and in making such a plea, 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 the jurors.’” Sands, 262 Va. at 729 (quoting McGhee v. Commonwealth, 219 Va. 560, 562 (1978)).

2024In Virginia, “insanity is an affirmative defense that the defendant must establish to the satisfaction of the fact finder.” Shifflett v. Commonwealth, 221 Va. 760, 769 (1981).

2023In four assignments of error, Wesley claims that the trial court erred in denying his motions to strike and convicting him of aggravated malicious wounding and strangulation “after the defendant established by a preponderance of the evidence that he was insane at the time of the offense.” Wesley asserts that his “insanity was the result of an irresistible impulse.” He - 10 - maintains that the trial court erred in finding him guilty because “he was insane at the time of the offenses” and should have found him “not guilty by reason of insanity.”4 We disagree.5 “In Virginia, unlike many jurisdic

2024A defendant relying on an affirmative defense has the burden “to present evidence establishing such defense to the satisfaction of the fact finder.” Riley v. Commonwealth, 277 Va. 467, 479 (2009).

2024“When asserting an affirmative defense, . . . the burden is on the defendant to present evidence establishing such defense to the satisfaction of the fact finder.” Riley v. Commonwealth, 277 Va. 467, 479 (2009).

2025“Self-defense is an affirmative defense . . . and in making such a plea, 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 the jurors.’” Bell v. Commonwealth, 66 Va. App. 479, 486 (2016) (alteration in original) (quoting Commonwealth v. -6- Cary, 271 Va. 87, 99 (2006)); see also McGhee v. Commonwealth, 219 Va. 560, 562 (1978) (same).

2023“Self-defense is an affirmative defense . . . and in making such a plea, 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 the jurors.’” Bell v. Commonwealth, 66 Va. App. 479, 486 (2016) (quoting Commonwealth v. Cary, 271 Va. 87, 99 (2006)).

2025“In Virginia, a criminal defendant typically bears the burden of ‘producing evidence in support of [an affirmative defense] sufficient to raise a reasonable doubt of [his or her] guilt.’” Williams v. Commonwealth, 57 Va. App. 341, 352 (2010) (alterations in original) (quoting Tart v. Commonwealth, 52 Va. App. 272, 276 (2008)). - 37 - Moreover, the first requirement Fitzgerald contests22 under this statute is that “the Commonwealth must prove that ‘the accused received a visible or audible signal from a law enforcement officer to bring the motor vehicle to a stop.’” Aley v. Commonwealth, 75 Va.

2024While “the Commonwealth bears the burden of proving every essential element of an offense beyond a reasonable doubt . . . , it is the defendant that bears the burden of producing evidence in support of an affirmative defense.” Foley v. Commonwealth, 63 Va. App. 186, 199 (2014) (quoting Williams v. Commonwealth, 57 Va. App. 341, 351 (2010)). “[W]hether duress . . . is established is a factual issue that is usually determined by the [fact-finder].” Warren v. Commonwealth, 76 Va. App. 788 , 804 (2023) (quoting Ronald J.

2024“Contributory negligence is an affirmative defense that must be proved according to an objective standard whether [Kim] failed to act as a reasonable person would have acted for his own safety under the circumstances.” Jenkins v. Pyles, 269 Va. 383, 388 (2005).

2014ANALYSIS "Contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances." Jenkins v. Pyles, 269 Va. 383, 388 , 611 S.E.2d 404, 407 (2005); accord Sawyer v. 9 Comerci, 264 Va. 68, 74 , 563 S.E.2d 748, 752 (2002); Ponirakis v. Choi, 262 Va. 119, 124 , 546 S.E.2d 707, 710 (2001).

2024“Whether an accused proves circumstances sufficient to create reasonable doubt” by means of an affirmative defense is a “question of fact” that “will not be disturbed on appeal unless plainly wrong or without evidence to support [it].” Smith v. Commonwealth, 17 Va. App. 68, 71 (1993) (citing Yarborough v. Commonwealth, 217 Va. 971, 979 (1977)). “[T]here is no uniform rule in Virginia regarding the burden of persuasion for affirmative defenses.” Foley, 63 Va. App. at 201 (quoting Tart, 52 Va. App. at 276 n.2).

2002"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) (citing McGhee v. Commonwealth, 219 Va. 560, 562 , 248 S.E.2d 808, 810 (1978); Yarborough v. Commonwealth, 217 Va. 971, 979 , 234 S.E.2d 286, 292 (1977)). "[A] person assaulted while in the discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all the force he deems necessary, and is not compell

2008Because self-defense is an affirmative defense, “the accused has the burden of persuading the fact finder that he or she acted in defense of self or another to the degree necessary to raise a reasonable doubt about his or her guilt.” Lynn v. Commonwealth, 27 Va. App. 336, 352 , 499 S.E.2d 1, 9 (1998); see also Smith v. Commonwealth, 17 Va. App. 68, 71 , 435 S.E.2d 414, 416 (1993).

2008Because self-defense is an affirmative defense, “the accused has the burden of persuading the fact finder that he or she acted in defense of self or another to the degree necessary to raise a reasonable doubt about his or her guilt.” Lynn v. Commonwealth, 27 Va. App. 336, 352 , 499 S.E.2d 1, 9 (1998); see also Smith v. Commonwealth, 17 Va. App. 68, 71 , 435 S.E.2d 414, 416 (1993).

2025On the one hand, it is true that where an affirmative defense is involved, we cannot “sustain the result and assign the right ground” if it would “be necessary to recognize and uphold a different defense—a defense that is not before us on this appeal.” Eason v. Eason, 204 Va. 347, 352 (1963).

2024Instead, the appellate court may affirm on any legal basis supporting the judgment “so long as it does not require new factual determinations, . . . involve an affirmative defense that must be ‘asserted in the pleadings,’ or serve as a subterfuge for a constitutionally prohibited cross-appeal in a criminal case.” Id. (citations omitted) (quoting Eason v. Eason, 204 Va. 347, 352 (1963)).

2014ANALYSIS "Contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances." Jenkins v. Pyles, 269 Va. 383, 388 , 611 S.E.2d 404, 407 (2005); accord Sawyer v. 9 Comerci, 264 Va. 68, 74 , 563 S.E.2d 748, 752 (2002); Ponirakis v. Choi, 262 Va. 119, 124 , 546 S.E.2d 707, 710 (2001).

2014ANALYSIS "Contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances." Jenkins v. Pyles, 269 Va. 383, 388 , 611 S.E.2d 404, 407 (2005); accord Sawyer v. 9 Comerci, 264 Va. 68, 74 , 563 S.E.2d 748, 752 (2002); Ponirakis v. Choi, 262 Va. 119, 124 , 546 S.E.2d 707, 710 (2001).

2025“Self-defense is an affirmative defense to a charge of murder, and in making such a plea, 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 the jurors.’” Commonwealth v. Cary, 271 Va. 87, 99 (2006) (quoting McGhee v. Commonwealth, 219 Va. 560, 562 (1978)).

2025“Self-defense is an affirmative defense . . . and in making such a plea, 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 the jurors.’” Bell v. Commonwealth, 66 Va. App. 479, 486 (2016) (alteration in original) (quoting Commonwealth v. -6- Cary, 271 Va. 87, 99 (2006)); see also McGhee v. Commonwealth, 219 Va. 560, 562 (1978) (same).

2023See Morgan v. Commonwealth, 50 Va. App. 120, 126 (2007) (“To present evidence of insanity to the fact finder, an accused must first make a prima facie showing that his evidence meets the requirements of the affirmative defense.” (citing White v. Commonwealth, 272 Va. 619, 629 (2006))).

2022“To present evidence of insanity to the fact finder, an accused must first make a prima facie showing that his evidence meets the requirements of the affirmative defense.” Morgan v. Commonwealth, 50 Va. App. 120, 126 (2007).

2023See Morgan v. Commonwealth, 50 Va. App. 120, 126 (2007) (“To present evidence of insanity to the fact finder, an accused must first make a prima facie showing that his evidence meets the requirements of the affirmative defense.” (citing White v. Commonwealth, 272 Va. 619, 629 (2006))).

2022“In Virginia . . . insanity is an affirmative defense that the defendant must establish to the satisfaction of the fact finder.” Morgan v. Commonwealth, 50 Va. App. 120, 126 (2007) -6- (quoting Shifflett v. Commonwealth, 221 Va. 760, 769 (1981)). “[U]nder the M’Naghten test for insanity, recognized in Virginia, the defendant may prove that at the time of the commission of the act, he was suffering from a mental disease or defect such that he did not know the nature and quality of the act he was doing . . . .” White v. Commonwealth, 272 Va. 619, 625 (2006).

2024“The defendant bears the burden of proving the defense by a preponderance of the evidence.” Brown v. Commonwealth, 68 Va. App. 746, 795 (2018); see also Taylor v. Commonwealth, 208 Va. 316, 322 (1967) (“In Virginia, every man is presumed to be sane until the contrary is made to appear and when insanity is relied upon as a defense in a criminal prosecution, it must be proved by the defendant to the satisfaction of the [fact finder].

2022In Virginia, “insanity is an affirmative defense that the defendant must establish to the satisfaction of the fact finder.” Brown v. Commonwealth, 68 Va. App. 746, 795 (2018); Taylor v. Commonwealth, 208 Va. 316, 322 (1967) (same).

2016(Emphasis added.) [A]n appellee may argue for the first time on appeal any legal ground in support of a judgment so long as it does not *81 require new factual determinations, see [Harris v. Commonwealth, 39 Va.App. 670 ,] 676, 576 S.E.2d [228,] 231 [ (2003) {en banc) ], or involve an affirmative defense that must be “asserted in the pleadings,” Eason v. Eason, 204 Va. 347, 352 , 131 S.E.2d 280, 283 (1963), or serve as a subterfuge for a constitutionally prohibited crossappeal in a criminal case, Hart v. Commonwealth, 221 Va. 283, 290 , 269 S.E.2d 806, 811 (1980).

2016(Emphasis added.) [A]n appellee may argue for the first time on appeal any legal ground in support of a judgment so long as it does not *81 require new factual determinations, see [Harris v. Commonwealth, 39 Va.App. 670 ,] 676, 576 S.E.2d [228,] 231 [ (2003) {en banc) ], or involve an affirmative defense that must be “asserted in the pleadings,” Eason v. Eason, 204 Va. 347, 352 , 131 S.E.2d 280, 283 (1963), or serve as a subterfuge for a constitutionally prohibited crossappeal in a criminal case, Hart v. Commonwealth, 221 Va. 283, 290 , 269 S.E.2d 806, 811 (1980).

2015The considerations listed in Mayhew are "the wording of the exception and its role in relation to the other words in the statute; whether in light of the situation prompting legislative action, the exception is essential to complete the [7] general prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e., sets *697 forth an affirmative defense; and whether the matter is peculiarly within the knowledge of the defendant.” 20 Va.App. at 490 , 458 S.E.2d at 308 (quoting Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318,

2015The considerations listed in Mayhew are "the wording of the exception and its role in relation to the other words in the statute; whether in light of the situation prompting legislative action, the exception is essential to complete the [7] general prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e., sets *697 forth an affirmative defense; and whether the matter is peculiarly within the knowledge of the defendant.” 20 Va.App. at 490 , 458 S.E.2d at 308 (quoting Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318,

2025“In Virginia, a criminal defendant typically bears the burden of ‘producing evidence in support of [an affirmative defense] sufficient to raise a reasonable doubt of [his or her] guilt.’” Williams v. Commonwealth, 57 Va. App. 341, 352 (2010) (alterations in original) (quoting Tart v. Commonwealth, 52 Va. App. 272, 276 (2008)). - 37 - Moreover, the first requirement Fitzgerald contests22 under this statute is that “the Commonwealth must prove that ‘the accused received a visible or audible signal from a law enforcement officer to bring the motor vehicle to a stop.’” Aley v. Commonwealth, 75 Va.

2024Accordingly, “‘once the facts constituting a crime are established beyond a reasonable doubt’” the criminal defendant “may be required to bear all or part of the burden in establishing an affirmative defense.” Tart v. Commonwealth, 52 Va. App. 272, 276 (2008) (quoting Patterson v. New York, 432 U.S. 197, 206 (1977)).

2024The assertion of a genuine claim-of-right “is an affirmative defense and thus usually a question for the trier-of-fact.” Id. at 70 .

2024A “claim of right is an affirmative defense.” Id. at 70 .

2024See Chaves, 230 Va. at 121 (holding that the burden for proving an affirmative defense of “justification or privilege” rests upon the defendant); Fox, 234 Va. at 427 (“Once a prima facie showing is made, the burden of proof shifts to [defendant] to show the affirmative defense of justification or privilege.”). - 38 - in damage to the plaintiff.” Blue Ridge Service Corp. of Va. v. Saxon Shoes, Inc., 271 Va. 206, 218 (2006).39 For “simple negligence,” a plaintiff need only show that, in breaching his duty, the defendant failed “to use the degree of care that an ordinarily prudent person would ex

1998“In the context of causes of action involving interference with a business relationship, freedom of action is balanced against protection of the business relationship involved to determine whether the affirmative defense of justification or privilege precludes liability for actions which would otherwise be culpable.” Chaves, 230 Va. at 121 , 335 S.E.2d at 103 .

2024By contrast, even though the plaintiff’s failure to mitigate damages is “an affirmative defense,” Forbes, 269 Va. at 380 , the defendant need not plead that defense in the answer, Monahan, 271 Va. at 631-32 .

2023“An assertion that an injured party has failed to mitigate damages is an affirmative defense.” Forbes v. Rapp, 269 Va. 374, 380 (2005).

2014ANALYSIS "Contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances." Jenkins v. Pyles, 269 Va. 383, 388 , 611 S.E.2d 404, 407 (2005); accord Sawyer v. 9 Comerci, 264 Va. 68, 74 , 563 S.E.2d 748, 752 (2002); Ponirakis v. Choi, 262 Va. 119, 124 , 546 S.E.2d 707, 710 (2001).

2014ANALYSIS "Contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances." Jenkins v. Pyles, 269 Va. 383, 388 , 611 S.E.2d 404, 407 (2005); accord Sawyer v. 9 Comerci, 264 Va. 68, 74 , 563 S.E.2d 748, 752 (2002); Ponirakis v. Choi, 262 Va. 119, 124 , 546 S.E.2d 707, 710 (2001).

2023Compare Jones, 249 Va. at 571-72 (declining to address a statute of limitations argument that defendant failed to raise as an affirmative defense in a responsive pleading), with Allstate Prop. & Cas.

2013See id.; cf. Jones v. Jones, 249 Va. 565, 571-72 , 457 S.E.2d 365, 369 (1995) (noting that the affirmative defense of the statute of limitations must be pled, per the statute).

2025While “the Commonwealth bears the burden of proving every essential element of an offense beyond a reasonable doubt . . . , it is the defendant that bears the burden of producing evidence in support of an affirmative defense.” Foley v. Commonwealth, 63 Va. App. 186, 199 (2014) (citation omitted). 7 Nwoke’s assignment of error V. 8 Nwoke’s assignment of error IV. - 12 - “Duress excuses criminal behavior ‘where the defendant shows that the acts were the product of threats inducing a reasonable fear of immediate death or serious bodily injury.’” Graham, 31 Va. App. at 674 (quoting Pancoast v. Com

2024“Whether an accused proves circumstances sufficient to create reasonable doubt” by means of an affirmative defense is a “question of fact” that “will not be disturbed on appeal unless plainly wrong or without evidence to support [it].” Smith v. Commonwealth, 17 Va. App. 68, 71 (1993) (citing Yarborough v. Commonwealth, 217 Va. 971, 979 (1977)). “[T]here is no uniform rule in Virginia regarding the burden of persuasion for affirmative defenses.” Foley, 63 Va. App. at 201 (quoting Tart, 52 Va. App. at 276 n.2).

2026This standard requires appellate courts to review the evidence in the light most favorable to the Commonwealth, the prevailing party below, and “accord the Commonwealth the benefit of all reasonable inferences deducible from the evidence.” Id. (quoting Garrick, 303 Va. at 182). trial” (quoting Gardner v. Commonwealth, 3 Va. App. 418, 423 (1986))); see also Reid v. Commonwealth, 57 Va. App. 42, 47-48 (2010) (finding an argument waived due to significant noncompliance with Rule 5A:20(e), which requires briefing the “principles of law, the argument, and the authorities relating to each question p

2023“The trier of fact determines the weight of evidence in support of a claim of self-defense.” Commonwealth v. Needham, 55 Va. App. 316, 326 (2009) (quoting Gardner v. Commonwealth, 3 Va. App. 418, 426 (1986)).