                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Annunziata and
          Bumgardner
Argued at Alexandria, Virginia


TYRONE JAMES WIGGINS
                                        MEMORANDUM OPINION * BY
v.       Record No. 2689-96-4     CHIEF JUDGE JOHANNA L. FITZPATRICK
                                          FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         J. Howe Brown, Judge
             M. Dale Phelps, Assistant Public Defender
             (Office of the Public Defender, on brief),
             for appellant.

             John H. McLees, Jr., Assistant Attorney
             General (Richard Cullen, Attorney General, on
             brief), for appellee.



     Tyrone J. Wiggins (appellant) was convicted in a jury trial

of receiving stolen property valued in excess of $200 in

violation of Code § 18.2-108.     On appeal, he argues that:   (1)

the trial court failed to properly instruct the jury; and (2)

despite appellant's failure to object at trial, reversal is

required to attain the ends of justice.       For the reasons that

follow, we affirm the conviction.

                            I.   Background

     Appellant contends the trial court erred in failing to

instruct the jury on the presumption of innocence, the

Commonwealth's burden to prove every element beyond a reasonable

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
doubt, the jury's duty to assess the credibility of witnesses,

and the jury's obligation to draw no adverse inference from

appellant's exercise of his right to remain silent.

     During voir dire, the trial court posed the following

inquiry to the jury:
          Mr. Wiggins, as I indicated, has pled "not
          guilty," to this charge, and that means that
          he is presumed to be innocent of the charge,
          and that presumption of innocence remains
          with him throughout the trial, and is enough
          to require you to find him not guilty, unless
          and until the Commonwealth proves each and
          every element of the offense, beyond a
          reasonable doubt.
               Do all of you understand that
          presumption of innocence, and will you apply
          it in this case?


(Emphasis added).   No jurors responded to indicate that they did

not understand or could not comply with the trial court's

instruction.   Defense counsel also questioned the jurors to

ascertain that they understood and could follow the requirement

that the Commonwealth prove its case beyond a reasonable doubt.

     During the time when counsel exercised their peremptory

strikes, the trial court gave the jury additional preliminary

instructions:
          The law that you apply to this case is given
          to you in these instructions, and in other
          instructions that you will receive at the
          close of all the evidence, and you must
          follow all of these instructions.
               It is your duty to determine the facts,
          and to determine them from the evidence, and
          the reasonable inferences arising from the
          evidence.
               In so doing you must not indulge in
          guesswork or speculation.



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The trial court also instructed the jurors that "you may give the

testimony of any witness just such weight and value as you

believe the testimony of that witness is entitled to receive."

     The Commonwealth's case established that upon execution of a

search warrant at appellant's home, police discovered sixty-one

videotapes valued at between $3,000 and $4,000, and marked with

labels, bar codes, and security devices belonging to Cross Point

Video.   Appellant's defense was based upon the testimony of

others and a statement he gave the police claiming that he had

purchased the tapes from an assistant manager at Cross Point and

did not know they were stolen.   Appellant did not testify at

trial.
     When the trial court asked both counsel for jury

instructions, the Commonwealth offered two model instructions.

Defense counsel did not object to the proffered instructions and

did not request any additional instructions.   In the first

instruction, the court reviewed the elements of the charged

offense and then described the Commonwealth's burden of proof:
          If you find that the Commonwealth has proved,
          beyond a reasonable doubt, each of the above
          elements of the offense, then you shall find
          the defendant guilty . . . .
               If you find that the Commonwealth has
          failed to prove, beyond a reasonable doubt,
          any one or more of the elements of the
          offense, then you shall find the defendant
          not guilty.


The second instruction reviewed the use of circumstantial

evidence:
            The Court instructs the jury that knowledge



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             that the goods were stolen need not be
             directly proved. It may be shown by
             circumstances, which if proved, must have
             caused the defendant to believe the goods
             were stolen.
                  Evidence that the property was obtained
             a[t] less than true value, standing alone, is
             not evidence to show that the defendant knew
             the goods were stolen.
                  Proof that the defendant was in
             exclusive personal possession of recently
             stolen goods, not explained by other
             evidence, is a circumstance from which you
             may reasonably infer that the defendant
             received the goods, knowing them to have been
             stolen, and that he received them with
             dishonest intent.

     During deliberations, the jury sent the court the following

question:
             Page 1 on the jury instructions claims we
             need to decide "beyond a reasonable doubt."
             On page 2 it instructs we can decide on
             "circumstantial evidence." Must the state
             prove his guilt based on the instructions on
             page 1 or 2 or how do we decide?


The judge proposed and both counsel approved the following

response:    "The Commonwealth must prove guilt beyond a reasonable

doubt.   You may consider circumstantial evidence along with other

evidence."

                            II.   Rule 5A:18

     Appellant concedes that he failed to request additional jury

instructions or to object to the instructions given at trial.

However, he contends that the "ends of justice" exception to Rule

5A:18 should be applied in the instant case.
          No ruling of the trial court . . . will be
          considered as a basis for reversal unless the
          objection was stated together with the
          grounds therefor at the time of the ruling,



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            except for good cause shown or to enable the
            Court of Appeals to attain the ends of
            justice.


Rule 5A:18.    "Under Rule 5A:18 we do not notice the trial errors

for which no timely objection was made except in extraordinary

situations when necessary to enable us to attain the ends of

justice."     Phoung v. Commonwealth, 15 Va. App. 457, 463, 424

S.E.2d 712, 716 (1992).
               The laudatory purpose behind Rule 5A:18
          . . . is to require that objections be
          promptly brought to the attention of the
          trial court with sufficient specificity that
          the alleged error can be dealt with and
          timely addressed and corrected when
          necessary. The rules promote orderly and
          efficient justice and are to be strictly
          enforced.

Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272

(1997).   "[T]he ends of justice exception is narrow and is to be

used sparingly."     Brown v. Commonwealth, 8 Va. App. 126, 132, 380

S.E.2d 8, 11 (1989).    "In order to avail oneself of the

exception, a defendant must affirmatively show that a miscarriage

of justice has occurred."     Redman, 25 Va. App. at 221, 487 S.E.2d

at 272 (citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357

S.E.2d 742, 744 (1987)).    "Whether we apply the bar of Rule 5A:18

or invoke the ends of justice exception, we must evaluate the

nature and effect of the error to determine whether . . . the

error clearly had an effect upon the outcome of the case."

Phoung, 15 Va. App. at 464, 424 S.E.2d at 716 (citation omitted).

     Appellant first argues that the trial court's failure to



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instruct the jury on the presumption of innocence at the close of

evidence deprived him of a fair trial.   "[T]he presumption of

innocence is 'a landmark of the law.'"   Whaley v. Commonwealth,

214 Va. 353, 355, 200 S.E.2d 556, 558 (1973) (citation omitted)

("accused is entitled to an instruction on the presumption of

innocence, and it is reversible error for the trial court to

refuse such an instruction when requested"). However,
          the failure to give a requested instruction
          on the presumption of innocence . . . must be
          evaluated in light of the totality of the
          circumstances - including all the
          instructions to the jury, the arguments of
          counsel, whether the weight of the evidence
          was overwhelming, and other relevant factors.
Kentucky v. Whorton, 441 U.S. 786, 789 (1979).

     In the instant case, the trial court explained the

presumption of innocence thoroughly during voir dire and later

reminded the jurors to follow all of its prior instructions.     In

addition, the trial was a brief one and lasted less than a day.

Although the better practice is to give this instruction prior to

final argument even if not offered by either party, under these

circumstances it is unlikely "that the jury retired to deliberate

less than fully aware of the presumption of innocence."   United

States v. Ruppel, 666 F.2d 261, 274-75 (5th Cir. 1982) (failure

to give instruction at end of 11-day trial not reversible error

where court explained presumption of innocence in preliminary

instructions and referred to those instructions in final charge,

and defense counsel referred to presumption in closing argument).

 Accord United States v. Van Helden, 920 F.2d 99, 101-02 (1st



                                6
Cir. 1990) (court should have instructed jury on presumption in

charge, but "court's unobjected-to failure to repeat the

five-times reiterated admonition to the jury concerning the

presumption of innocence" was not reversible error).   The failure

to give any instruction on the presumption of innocence during

the trial would be clear and material error.   However, "[a]n

error that is not important enough to affect the outcome of the

trial is not material but rather is harmless error."    Phoung, 15

Va. App. at 465-66, 424 S.E.2d at 717.   Under the facts of this

case, while the trial court should have given the presumption of

innocence instruction again at the end of trial, any error was

harmless.
     Appellant's next contention that the trial court improperly

instructed the jury on the Commonwealth's burden of proof has no

merit.   During voir dire, the court instructed the jury that the

Commonwealth was required to prove each and every element beyond

a reasonable doubt and gave jurors the preliminary instruction

that they "must not indulge in guesswork or speculation."    At the

close of the trial, the trial court gave the Commonwealth's first

proposed instruction which outlined the elements of the charged

offense and reviewed the burden of proof as being beyond a

reasonable doubt.   The trial court properly did not attempt to

define "reasonable doubt," since "it is highly probable that any

definition devised would be less illuminating than the expression

itself."    Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d




                                  7
775, 777 (1986) (citation omitted).   Additionally, the trial

court gave appropriate instruction regarding reasonable doubt in

response to the jurors' written question.   The jury was properly

instructed on the Commonwealth's burden to prove its case beyond

a reasonable doubt.

     Appellant also argues that the trial court failed to

properly instruct the jury that it must determine the credibility

of witnesses.   We disagree.   The court gave just such an

instruction during the peremptory strike period, before the jury

would have to make credibility determinations.   Moreover, from

the verdict it is clear the jury chose to believe some witnesses

and not others.
     Lastly, appellant contends the trial court committed

reversible error when it failed to sua sponte instruct the jury

not to draw any adverse inference from appellant's exercise of

his right not to testify.   "[W]hen a principle of law is vital to

a defendant in a criminal case, a trial court has an affirmative

duty properly to instruct a jury about the matter."    Jimenez v.

Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991)

(citations omitted) (reversible error to refuse rather than amend

defective instruction regarding essential elements of case).

However, the principle that a jury shall not draw a negative

inference from a defendant's silence is not vital to a defense.

Although a trial court is required "to give this instruction upon

request of a defendant," some defendants deliberately do not




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request it to avoid drawing attention to their silence.     Hines v.

Commonwealth, 217 Va. 905, 909, 234 S.E.2d 262, 265 (1977)

(citation omitted).   To require a court to give the instruction

sua sponte would deprive defendants of this option in determining

their trial strategy and would not provide any benefit that was

not already available.   In the instant case, appellant could have

requested and received the negative inference instruction, but he

did not do so.   The trial court's failure to give this

instruction on its own initiative was not error.
     "We have held that a clear miscarriage of justice has

occurred when the error is 'clear, substantial and material.'"

Phoung, 15 Va. App. at 464, 424 S.E.2d at 716 (citation omitted).

In the instant case, the trial court's failure to instruct the

jury on the presumption of innocence was harmless, and

appellant's additional contentions lack merit.   Consequently, the

record in this case does not support the application of the ends

of justice exception to Rule 5A:18.   For the foregoing reasons,

the decision below is affirmed.
                                                          Affirmed.




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