                   COURT OF APPEALS OF VIRGINIA


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


JOHN ANTONIO FENNELL
                                           MEMORANDUM OPINION * BY
v.   Record No. 2217-97-1                   JUDGE LARRY G. ELDER
                                                MARCH 16, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                Kenneth N. Whitehurst, Jr., Judge

          Richard C. Clark, Assistant Public Defender
          (Office of the Public Defender, on brief), for
          appellant.

          Daniel J. Munroe, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     John Antonio Fennell (appellant) appeals from his

convictions for two counts of robbery pursuant to Code § 18.2-58

and two counts of using a firearm in the commission of a felony

pursuant to Code § 18.2-53.1.   On appeal, he contends the trial

court erred in refusing his proffered jury instruction, which

would have permitted the jury to convict him of being an

accessory after the fact to the two robberies.     For the reasons

that follow, we agree, and we reverse and remand.

                                 I.

                                FACTS

     In the early morning hours of August 16, 1996, Matthew

Wainscott and Stuart Wynham were robbed at gunpoint.      Appellant,

     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Leon Bacote, Thomas Darden and Anthony Pitchford were arrested

for these robberies.    Testimony given by the two victims and

other witnesses to the two robberies was sufficient to permit the

conviction of appellant for two counts of robbery as a principal

in the second degree.

     The evidence also contained appellant's version of events, a

statement he gave to Detective C.S. Mills following his arrest in

which he attempted to absolve himself of any direct

responsibility for the robberies.   Appellant said that, on the

evening of August 16, 1996, Leon Bacote picked up appellant,

appellant's cousin Thomas Darden, and Bacote's friend Anthony

Pitchford.   Appellant, who was fifteen at the time, was the only

juvenile in the group.   Bacote had a shotgun with him, and Bacote

and Pitchford talked about "robbing . . . Navy personnel" because

it was "Navy payday."    Appellant knew the vehicle they were

riding in had been stolen because "the key [was] jammed into the

ignition" and the car "cut off" every time Bacote stopped.

     Bacote pulled the car up to the first victim, Wainscott.

They all got out, and appellant stood beside the car.    Bacote

walked up to Wainscott while asking him for directions and hit

him with the gun.   Pitchford searched Wainscott's pockets, and

Bacote took Wainscott's cigarettes.     Then they "all ran back to

the car" and fled with Pitchford at the wheel.    Appellant told

Detective Mills he did not touch or kick Wainscott.




                                - 2 -
     Sometime later, Pitchford pulled the car up to Wynham and

William Jadgman.   All four got out, and Bacote approached Wynham

with the shotgun and asked for Wynham's money.     Darden hit Wynham

with his fists, and Bacote hit Wynham in the head with the

shotgun.   Appellant, Bacote and Darden ran off.   Pitchford

followed on foot and told them that the car had "cut off," and

then he fled on foot.   At Bacote's urging, appellant broke into a

car and started it, and then Bacote drove appellant and Darden

from the scene.

     Appellant subsequently pleaded guilty to grand larceny and

receiving stolen property.   At his trial on the two charges of

robbery and two charges of use of a firearm in the commission of

a felony, appellant proffered Jury Instructions 18A and 18B.

Instruction 18A permitted the jury to find appellant guilty of

being only an accessory after the fact to the robberies.

Instruction 18B provided that if the jury found appellant not

guilty of robbery but guilty of being an accessory after the

fact, it should find him not guilty of using a firearm in the

commission of a felony.   These instructions went unchallenged as

general recitations of the law, but the prosecution contended

that Instruction 18A was inappropriate because the crime of being

an accessory after the fact was not a lesser-included offense of

robbery.   In proffering instructions 18A and 18B, appellant's

counsel made the following argument:
           [T]he cases that I am submitting are Manley
           v. Commonwealth, 222 Va. 642, a 1981 case,




                               - 3 -
             and McClung v. Commonwealth, 215 Va. 654, a
             1975 case; and the reason I would ask for an
             accessory after the fact instruction for Mr.
             Fennell's case is I think there's sufficient
             evidence to support that instruction.
                   The elements of accessory after the fact
             are that the felony must be completed, that
             the person know that the felony was completed
             and somehow they aided or assisted the person
             who committed the felony; and I think, at
             least from the evidence we have today,
             there's enough to get the instruction in; and
             I think there's enough for the jury to at
             least consider the instruction.
                   In the Manley case, it was a situation
             where a person was already found guilty of an
             accessory after the fact, and it was
             overturned because there wasn't sufficient
             evidence for that, but I think some of the
             language is important on the last page of
             that.
                   It refers to in the last paragraph the
             person was indicted for robbery. The
             argument was that he was a principal in the
             second degree. The jury convicted him of
             accessory after the fact. So the court held
             that misdemeanor conviction acquitted the
             accused of all the higher grades of the
             offense charged. So obviously, there was an
             instruction granted in that situation of
             accessory after the fact.
                   With the McClung case, the reason I
             think that's important is not specific to the
             facts of the case, but just the holding that
             if any proffered instruction finds any
             supporting credible evidence, its refusal is
             reversible error, and I think -- to
             anticipate what [the prosecutor] is going to
             argue, I think their argument on the issue of
             it being a lesser included [offense] is
             somewhat restrictive. I think the way they
             are going to argue this situation is you
             would never be able to get an accessory after
             the fact instruction in. So based on the
             Manley case, I would ask the court to grant
             those instructions.

(Emphasis added).     In further argument, counsel for appellant

indicated:




                                 - 4 -
             I believe the Manley case is closer to the
             facts we have today than [to the cases cited
             by the Commonwealth] -- that don't have to do
             with accessory after the fact. I would argue
             accessory after the fact would be made into
             an attempt type situation with evidence that
             supports that instruction, and we should be
             allowed to get that instruction in.

(Emphasis added).    In denying the instruction, the trial court

said, "I don't think it's a lesser included offense, and [the]

Commonwealth could have chosen to charge him with that but did

not.   I think it's either he's guilty of the robbery or not

guilty of the robbery . . . ."

                                  II.

                               ANALYSIS

       As a preliminary matter, the Commonwealth contends that

appellant was not entitled to an accessory-after-the-fact

instruction because that offense was not lesser-included in

robbery.   Although we agree, for the reasons set forth in Dalton

v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1999) (en

banc), that the crime of being an accessory after the fact is not

truly lesser-included in robbery or any other offense, we

nevertheless conclude that appellant was legally entitled to such

an instruction pursuant to Code § 19.2-286 and Rule 3A:17(c) if

such an instruction was factually supported by the evidence.

       Appellant did not specifically cite Code § 19.2-286 or Rule

3A:17(c) to the trial court.    However, as this Court previously

has noted,




                                 - 5 -
             [t]he contemporaneous objection rule requires
             only that a party inform the trial court of
             the action it wishes the court to take or its
             objection to the action of the court and the
             "grounds therefor." Code § 8.01-384; see
             also Rule 5A:18; Campbell v. Commonwealth,
             [12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991)
             (en banc)]. This Rule does not prohibit
             reliance on statutes or cases not presented
             to the trial court to support, on appeal, a
             position otherwise adequately presented at
             trial. R. Martineau, Modern Appellate
             Practice § 3.8 (1983). Nor does it prevent
             this Court, on its own initiative, from
             relying on statutory or judicial authority
             that was not presented to the trial court or
             referred to in the briefs submitted by the
             parties. See id. at § 3.9.

Lash v. County of Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851,

852-53 (1992) (en banc) (emphasis added).

        Here, appellant proffered an accessory-after-the-fact

instruction and stated he thought the trial court should give the

instruction because "there's sufficient evidence to support that

instruction."     Appellant went further by citing Manley v.

Commonwealth, 222 Va. 642, 283 S.E.2d 207 (1981), in which the

trial court gave an accessory-after-the-fact instruction even

though the defendant had been indicted for robbery as a

principal.     Id. at 645, 283 S.E.2d at 208.    Further, appellant

analogized to the situation in which one who is indicted as a

principal for a completed offense is instead convicted for an

attempt to commit that offense.       Both Code § 19.2-286 1 and Rule

    1
        Code § 19.2-286 provides:

             Conviction of attempt or as accessory on
             indictment for felony; effect of general




                                    - 6 -
3A:17(c) 2 permit conviction for attempt to commit an offense or

for being an accessory after the fact to that offense even though

only the underlying substantive offense was charged.    Therefore,

although appellant did not expressly cite Code § 19.2-286 or Rule

3A:17(c), we hold that his citation to Manley and comparison to

conviction for an attempt were sufficient to put the trial court

on notice of the basis for his proffer and, therefore, to permit

our consideration of the rule and statute on appeal.

        We next consider whether the accessory-after-the-fact

instruction was supported by the evidence.

          "To constitute one an accessory after the
          fact, three things are requisite: 1. The
          felony must be completed; 2. [The accessory]
          must know that the felon is guilty; 3. [The
          accessory] must receive, relieve, comfort or
          assist him. It is necessary that the
          accessory have notice, direct or implied, at
_________________
          verdict of not guilty. -- On an indictment
          for felony the jury may find the accused not
          guilty of the felony but guilty of an attempt
          to commit such felony, or of being an
          accessory thereto; and a general verdict of
          not guilty, upon such indictment, shall be a
          bar to a subsequent prosecution for an
          attempt to commit such felony, or of being an
          accessory thereto.
    2
        Rule 3A:17(c) provides:

             Conviction of Lesser Offense. -- The accused
             may be found not guilty of an offense charged
             but guilty of any offense, or of an attempt
             to commit any offense, that is substantially
             charged or necessarily included in the charge
             against the accused. When the offense
             charged is a felony, the accused may be found
             not guilty thereof, but guilty of being an
             accessory after the fact to that felony.




                                  - 7 -
             the time he assists or comforts the felon,
             that he has committed a felony."

Manley, 222 Va. at 645, 283 S.E.2d at 208 (quoting Wren v.

Commonwealth, 67 Va. (26 Gratt.) 952, 956 (1875)).        As we

discussed in Dalton, "'[a] defendant is entitled to have the jury

instructed . . . on those theories of the case that are supported

by the evidence, and a trial court errs when it refuses such an

instruction that is supported by 'more than a scintilla' of

evidence."    ___ Va. App. at ___, ___ S.E.2d at ___ (quoting Frye

v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986)).

In determining whether sufficient evidence supported the giving

of a proffered instruction, we view the evidence in the light

most favorable to the party requesting the instruction.           See

Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200

(1991)).

     Here, viewing the evidence in the light most favorable to

appellant, appellant was arrested while riding as a passenger in

a stolen vehicle containing two other people.    Appellant, who was

fifteen years old at the time of the charged offenses, told

Detective Mills that he was present as a passenger and observer

during the planning and execution of the robberies committed by

his adult companions earlier in the evening but that he did not

participate other than by being present and subsequently helping

to steal a car in which appellant and two of his companions fled.

This evidence, viewed in the light most favorable to appellant,

was sufficient to support the giving of an




                                 - 8 -
accessory-after-the-fact instruction regarding the two robbery

charges.

     For these reasons, we reverse appellant's conviction and

remand to the trial court.

                                           Reversed and remanded.




                              - 9 -
Lemons, J., dissenting.

     Fennell did not raise at trial or on appeal to this Court

either Rule 3A:17(c) or Code § 19.2-286 in support of his

requested instructions.   For the reasons more specifically

expressed in my dissent in Dalton v. Commonwealth, ___ Va. App.

___,___, ___ S.E.2d ___, ___ (1999) (en banc), I dissent.




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