                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Coleman
Argued at Salem, Virginia


GEORGE LINCOLN HOPKINS, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0208-02-3        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              APRIL 22, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HENRY COUNTY
                     David V. Williams, Judge

           S. Jane Chitton, Appellate Defender (Public
           Defender Commission, on briefs), for
           appellant.

           Michael T. Judge, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellee.


     A jury convicted George Lincoln Hopkins, Jr. (appellant) of

second-degree murder in violation of Code § 18.2-32.     The trial

court sentenced appellant to forty years' imprisonment, in

accordance with the jury verdict.   On appeal, appellant contends

the trial court erred in its response to a jury question about the

possibility of parole.   For the reasons that follow, we affirm.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
therefrom.     See Juares v. Commonwealth, 26 Va. App. 154, 156,

493 S.E.2d 677, 678 (1997).     So viewed the evidence proved that

on the night of March 19, 2001 after an argument, appellant

killed his drinking companion, Larry Bennett.      Appellant did not

dispute the killing, but argued only that the Commonwealth could

not prove the premeditation necessary to support a conviction

for first-degree murder.

     At trial, neither the Commonwealth nor appellant requested

a jury instruction about the possibility of parole.         While the

jury deliberated on the issue of guilt, it sent two questions to

the trial court.    The jury questions were:    (1) "What is the

sentence for 2nd [sic] degree murder?" and (2) "What is the

possibility of parole for 2nd [sic] degree murder?"         After

conferring with both the Commonwealth's Attorney and appellant's

counsel, the trial court instructed the jury that the sentence

for second-degree murder was five to forty years.      On the parole

question, the trial court met in chambers with both counsel

before answering the jury.      During that meeting, the

Commonwealth's Attorney suggested an instruction, and appellant

agreed.   The discussion between counsel was as follows:

             COMMONWEALTH: I think [the jury] ought to
             be told what the sentencing range for murder
             two is—and the parole.

             DEFENSE COUNSEL:   I don't argue with that.

             COURT: Okay.   Let's see.    What is it—five
             to forty?


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            COMMONWEALTH: It is five to forty—easy; no
            fine. Parole possibility: is eligible for
            parole after eighty five percent.

            DEFENSE COUNSEL:   I agree.

After all the parties agreed to the information to be given to

the jury, the trial court sent the following written answer to

the jury:   "Parole has been abolished in Virginia.   The

defendant will have to serve at least 85% of any sentence he may

receive."   The jury convicted appellant of second-degree murder

and recommended a sentence of forty years.

     The sole question presented on appeal is whether the trial

court's answer to the jury question about parole was error. 1

Appellant contends that the trial court had an affirmative duty

to give the jury an answer that comported with the rule set

forth in Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629

(2000).   The Commonwealth responds that appellant waived any

complaint about the answer the trial court gave when he failed

to object or proffer a correct statement of the law.     We agree

with the Commonwealth and hold that appellant's assignment of

error is waived.    See Rule 5A:18.   The ends of justice do not

compel a different result.

     The instant case is indistinguishable from, and therefore

controlled by, Commonwealth v. Jerman, 263 Va. 88, 556 S.E.2d

754 (2002).   In Jerman, the instruction complained of was given


     1
       Appellant never proffered what he believed to be a correct
answer either at trial or on appeal.

                                 - 3 -
by "agreement of the court, the Commonwealth's attorney, and

counsel for Jerman."     Id. at 90, 556 S.E.2d at 755.   The Supreme

Court held that Jerman's failure to "state a timely objection to

the circuit court's instruction" barred him from challenging the

instruction on appeal.     Id. at 94, 556 S.E.2d at 757.   The same

situation presents itself here.    Appellant neither objected to

the response the trial court gave the jury nor offered an

alternative response for the trial court to consider.      Indeed,

the record shows that appellant agreed with the Commonwealth's

proposed answer, which is the one the trial court adopted.

        "[Appellant's] failure to proffer a parole eligibility

instruction and his failure to object to the trial court's

instruction in response to the jury's inquiry mentioned above

precludes us from addressing the merits of this assignment of

error."     Cherrix v. Commonwealth, 257 Va. 292, 311, 513 S.E.2d

642, 654 (1999).    "[Appellant's] counsel was required to state

any objection to the circuit court's instruction and to ask the

court for any other instruction on the subject that he deemed

necessary."     Jerman, 263 Va. at 94, 556 S.E.2d at 757-58.

Appellant failed to make any objection or to offer an

alternative or additional instruction.    To the contrary,

appellant affirmatively accepted the answer the trial court

gave.    Accordingly, the judgment of the trial court is affirmed.

                                                             Affirmed.



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