                      COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia


JAMAR SHANTE PAXTON
                                         MEMORANDUM OPINION * BY
v.   Record No. 3063-01-2              JUDGE WALTER S. FELTON, JR.
                                            DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          Rodney L. Jefferson (Jefferson & Lassiter, on
          brief), for appellant.

          Margaret W. Reed, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Jamar Paxton was convicted in a jury trial of (1) first

degree murder, in violation of Code § 18.2-32; (2) use of a

firearm during the commission of a murder, in violation of Code

§ 18.2-53.1; (3) maiming, in violation of Code § 18.2-51; (4)

attempted robbery, in violation of Code §§ 18.2-26 and 18.2-58;

(5) shooting into an occupied dwelling, in violation of Code

§ 18.2-279; (6) use of a firearm during the commission of a

malicious wounding, in violation of Code § 18.2-53.1; and (7)

use of a firearm during the commission of an attempted robbery,

in violation of Code § 18.2-53.1.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On appeal, he contends that it was reversible error for the

trial court (1) to allow a witness to testify to a

co-conspirator's statement when the Commonwealth had not

established a prima facie case of conspiracy; (2) to admit

statements into evidence as excited utterances or co-conspirator

statements when there was no identification of the declarant;

(3) to refuse a jury instruction on the offense of accessory

after the fact; (4) to refuse to clarify the jury's question

regarding Instruction 7 (concert of action) and Instruction 13

(principal in the second degree); and (5) to allow the jury

verdict to stand when the evidence was insufficient to support

conviction.   We affirm the judgment of the trial court.

                            I.    BACKGROUND

                           A.    THE OFFENSES

     On the evening of February 14, 2001, Lynwood Thrower

confronted Matthias Washington on the front porch of 3101

Garland Avenue.   Thrower demanded fifty dollars and drugs from

Washington.   Washington told Thrower that he did not have any

drugs or money to spare.    Thrower informed Washington that he

was going to come back "with his boys" and rob him.      He

subsequently stated, "[Y]ou know what, you going to be my next

victim."   Thrower drove away in a four-door gray Cadillac.

     Approximately one hour later, Thrower returned to 3101

Garland Avenue with Jamar Paxton, William Sally, also known as

"Orbit," and an unnamed individual.       Thrower was wearing a

                                  - 2 -
bulletproof vest and armed with an AK-74 assault rifle.     He

directed Paxton, Sally, and the unnamed individual to go around

to the back of the house.

        Upon seeing Thrower, Washington ran inside and up the

staircase past Adrian Harris, who resided upstairs.     Thrower

followed him inside and from the bottom of the stairs, yelled to

someone.    Hearing Thrower, Washington realized that people were

coming around to the back of the house so he exited through an

upstairs window and escaped by jumping off the porch roof.

        Thrower walked up the stairs and placed the muzzle of the

assault rifle between Harris' eyes.      He then yelled, "Kick the

backdoor in."    Almost immediately, a shot was fired at the back

door and then the door was kicked in.     After a second shot from

the back of the house rang out, Thrower proceeded back down the

stairs.

        At the time of the intrusion, Melvin Brinkley and his

girlfriend Roberta Latham were residing in the downstairs of

3101 Garland Avenue.    That night they were babysitting

twenty-three-month-old Kayla Brown.      Brinkley and Latham were

sleeping in the back room when loud kicks and gunshots awakened

them.    When Brinkley got up, three men were standing in the

kitchen doorway.    He heard one say, "Get the money, get the

drugs."    Shortly thereafter another said, "Oops, we're in the

wrong house."    Brinkley stated that at least two different



                                 - 3 -
weapons were fired before the three men turned and left through

the back door.

       Brinkley was unable to identify the men because the

intruders cut the electricity to the house.      When the three men

left, Latham ran out the front door.    Brinkley followed her, but

remembered that the infant Kayla was sleeping on the couch.        He

ran back into the apartment to get Kayla.      Upon entering the

apartment, Brinkley closed and locked the door.      Suddenly,

gunfire erupted through the front door.       Thrower began firing

the AK-74 into the downstairs apartment, hitting Brinkley in the

leg.   Kayla died as a result of multiple gunshots to her head.

                          B.   THE EVIDENCE

       Detective Rick Warthen, a forensics crime scene

investigator with the Richmond Police Department, inspected the

crime scene.   He recovered cartridge cases and bullets

indicating the use of at least three firearms.      More than twenty

of the cartridge cases found near the front door of the

downstairs apartment were fired from an assault rifle.      In

addition to collecting bullets and cartridge cases, blood

samples were also collected.    Of the numerous samples collected,

DNA testing revealed that Paxton's blood was found inside the

back door of the downstairs apartment and on a rubber hose found

in the alleyway of 3101 Garland Avenue.

       In addition to the crime scene being inspected, Thrower's

gray Cadillac was searched for evidence.      The Cadillac was seen

                                - 4 -
after the shooting, parked in the emergency room driveway of the

Medical College of Virginia.    Detective William Thompson saw the

Cadillac when he responded to a call at the hospital.    Inside

the hospital, he found Thrower and Sally in the waiting room

while Paxton received treatment for a gunshot wound in his foot.

     The Cadillac was eventually impounded and searched by

Detective Warthen for evidence.    In the rear passenger seat, a

bloody Timberland boot was found.    DNA testing revealed the

blood to be Paxton's.    A bottle of prescription drugs containing

Paxton's name was also discovered in the vehicle.    DNA testing

on a "doo rag" and a skullcap found in the vehicle revealed that

Sally could not be eliminated as a contributor to DNA samples

taken from them. 1   However, Thrower and Paxton were eliminated.

DNA testing of samples taken from the steering wheel revealed

that Sally and Paxton were eliminated as possible contributors,

but Thrower could not be eliminated as a contributor.

     Detective James Simmons interviewed Paxton regarding the

events of February 14, 2001.    In that interview, Paxton denied

being in Thrower's Cadillac that evening.    He claimed he was

leaving his cousin's house when he was shot in the foot and that

Sally and Thrower came to the hospital in the Cadillac after his

cousin had dropped him off at the emergency room.    He denied

being at 3101 Garland Avenue when Brinkley and Kayla were shot.


     1
       A "doo rag" is a brimless, close-fitting piece of cloth
worn on the head, such as a bandana.

                                - 5 -
He also denied shooting a gun that night.   Gunshot residue tests

were performed on Paxton, Sally, and Thrower.   Test results

showed that all three had primer residue on their hands.

     While awaiting trial, in the Richmond City jail, Paxton and

Thrower exchanged letters through a jail trustee.   A forensic

document examiner compared their letters to other known writings

of Paxton and Thrower.   He concluded that the letters were

indeed written by Paxton and Thrower.    The contents of Thrower's

letter were not introduced at trial.    However, Paxton's letter

was admitted and stated the following:

          I didn't want to tell them I was anywhere
          near the house but I'm trying to help you.
          They have eye witnesses saying that me and
          Orbit was on the back porch the whole time
          then they heard me say oh shit and me and
          Orbit ran to the car. Eye witnesses saw the
          car parked in the alley. The lawyers know
          just about everything. If the witnesses
          seen us in the back porch that what we
          should say. I can't say that I shot myself
          because they checked me for gun powder and I
          didn't have any on my hands. So, that won't
          work. Just tell them that me and Orbit was
          on the back porch and you went around the
          front. Me and Orbit will tell them that we
          didn't even see you with a gun so that means
          if you had a gun it had to have been a small
          one because we didn't notice it. And a big
          gun wouldn't fit around your waist without
          you walking funny and we didn't see you
          walking funny at all. You get what I'm
          saying? That means one of them had to have
          the big gun. I'm going to tell them I don't
          know exactly where the gun shots came from
          but I'm assuming though [sic] a window at
          the house and it sounded like an AKA. So
          that means that one of them had to shoot me
          because you had a hand gun. I can also tell
          them that I heard two different guns

                               - 6 -
          shooting. I'm not going to snitch on your
          [sic] or nothing like that. I will do
          whatever I can to help you as far as
          stretching the story but I can't tell them I
          did something that I didn't do and
          especially something that DNA will prove I
          didn't do because that will cross me up. I
          got your back though. You got to realize
          they got witnesses that watched the whole
          thing from after I got shot because they
          heard those first couple of gun shots.
          People was probably watching everything
          through their windows. If they ask who's
          Valentines stuff in the car tell them it's
          mines and that you was about to take me to
          my baby-mother's house. And that the reason
          you didn't take me earlier is because you
          didn't see me until late that night at the
          house where everybody be chillin at.

          I'll holla back.

                             C.     TRIAL

     At trial, Harris testified for the Commonwealth.     Among

other things, he testified that he heard Thrower say, "Kick the

backdoor in."   Paxton objected on the grounds that the statement

was hearsay, inflammatory, and prejudicial.     The court ruled the

statement was admissible under the co-conspirator exception to

the hearsay rule.   The trial court ruled that the statement was

admissible even though Paxton was not indicted for conspiracy to

commit murder because the Commonwealth had established a prima

facie existence of a conspiracy.      See Anderson v. Commonwealth,

215 Va. 21, 205 S.E.2d 393 (1974); Rabeiro v. Commonwealth, 10

Va. App. 61, 389 S.E.2d 731 (1990).

     Brinkley also testified on behalf of the Commonwealth.       He

testified that he heard one person at the back door say, "Get

                                  - 7 -
the money, get the drugs," and another say, "Oops, we're in the

wrong house."   Paxton objected on the grounds that the

statements were hearsay and that Brinkley could not identify who

made the statements.   Brinkley did, however, identify who made

the statements.   He identified the statements as coming from the

three individuals who were standing in the kitchen just inside

the back door that had just been kicked in.   The prosecutor

argued that the statements were not hearsay, as they were

offered to prove they were said, not for the truth of the matter

asserted.   The court ruled the statements were admissible as

either co-conspirators' statements or excited utterances.

     At the conclusion of trial, Paxton requested that an

accessory after the fact instruction be given to the jury.     The

court denied the request citing Dalton v. Commonwealth, 259 Va.

249, 524 S.E.2d 860 (2000), which held that unless the

Commonwealth charged a defendant with being an accessory after

the fact, he was not entitled to an accessory after the fact

instruction.

     During jury deliberations, the jury sent a note to the

court asking if the judge could clarify instructions on "concert

of action" and "principal in the second degree."    The following

colloquy ensued between the court and trial counsel:

            THE COURT: Does either counsel wish to see
            the juror's note or the instructions?

            MR. HICKS [Commonwealth's Attorney]:   No,
            ma'am.

                                - 8 -
          MR.HERRING [Paxton's attorney]: If the
          Court read the note, I don't need to see it.
          Judge, I would simply say that any comment
          or editorial from counsel at this point
          would do more harm than good. We've argued
          those instructions at length. It's up to
          the jurors now to sort them out as best they
          can and arrive at a verdict if they can.

          THE COURT: Do you have any problems with me
          telling the jury that Instruction No. 7
          [concert of action] and Instruction No. 13
          [principal in the second degree] state the
          law that is applicable to this case, please
          read them again carefully?

          MR. HERRING: I don't have any objection.
          That's 7 and 13?

          THE COURT:   Yes.

          MR. HICKS: Counsel for the Commonwealth
          also would not have any objection to the
          court advising the jury that the law of the
          case to be read as a whole, et cetera.

          THE COURT: So the Court will tell them that
          Instruction 7 and Instruction 13 state the
          law applicable to the case. Please read
          these instructions again and follow all the
          instructions the Court has given them.

The jury was so instructed and subsequently convicted Paxton of

(1) first degree murder, in violation of Code § 18.2-32; (2) use

of a firearm during the commission of a murder, in violation of

Code § 18.2-53.1; (3) maiming, in violation of Code § 18.2-51;

(4) attempted robbery, in violation of Code §§ 18.2-26 and

18.2-58; (5) shooting into an occupied dwelling, in violation of

Code § 18.2-279; (6) use of a firearm during the commission of a

malicious wounding, in violation of Code § 18.2-53.1; and (7)




                              - 9 -
use of a firearm during the commission of an attempted robbery,

in violation of Code § 18.2-53.1.

                  II.   CO-CONSPIRATOR STATEMENTS

     Paxton first argues that the trial court erred in admitting

hearsay testimony of an alleged co-conspirator into evidence

because he was not charged with conspiracy to commit robbery and

the persons making the statements, and to whom the statements

were made, were not identified.    We hold that the trial court

did not err in admitting the statements.

     Washington testified that Thrower approached him and

demanded money and drugs from him.      When he refused, Thrower

threatened Washington that he would return with his "boys" and

rob him.   Washington further testified that Thrower stated he

was going to be his "next victim."      There was no objection to

the admission of these statements.      Approximately an hour later,

Thrower returned with three men.    Thrower chased Washington

through the front door while Thrower's accomplices forcibly

gained entry to the residence through the back door.

     Harris testified that while Thrower had an AK-74 pointed at

his head, Thrower yelled, "Kick the backdoor in."     Paxton

objected to the statement on the grounds that it was hearsay.

The trial court, however, admitted the statement under the

co-conspirator exception, having determined there was prima

facie evidence of an existing conspiracy.



                               - 10 -
     Brinkley testified that when the three men kicked in the

back door, he heard one say, "Get the money, get the drugs" and

another say, "Oops, we're in the wrong house."   Again, Paxton

objected to the admission of the statements on the grounds that

they were hearsay.   The prosecutor argued that the statements

were not hearsay because they were offered for the fact that

they were said.   He also argued, in the alternative, that if the

statements were found to be hearsay, they were admissible as

statements of co-conspirators.    The trial court admitted the

statements under the co-conspirator exception.

     We conclude the statements were not hearsay.     Hearsay is an

out-of-court statement, offered in court to prove the truth of

the matter asserted.   Taylor v. Commonwealth, 28 Va. App. 1, 9,

502 S.E.2d 113, 117 (1998).   "Testimony about another's

statements is sometimes admitted to show the effect that the

statement had upon a person who heard the statement.    Such

testimony is technically not hearsay, since the issue is not

whether the statement was true, but what its effect was upon the

person overhearing it."   Charles Friend, The Law of Evidence in

Virginia § 18-3 (5th ed. 1999).

     The statements "Kick the backdoor in," "Get the money, get

the drugs," and "Oops, we're in the wrong house," were not

offered to prove the truth of the matters asserted.    To the

contrary, "Kick the backdoor in" was offered to show its effect

on Paxton, Sally, and the unnamed individual as they gained

                              - 11 -
forced entry through the back door of the apartment.    Thrower

commanded the three men to gain entry to the apartment by

yelling, "Kick the backdoor in."    Immediately thereafter,

gunshots were heard and someone kicked in the back door.      The

statement was not offered to prove the truth or falsity of the

statement, but rather it was offered to show joint activity of

those downstairs acting in response to Thrower's command.

     Similarly, "Get the money, get the drugs" and "Oops, we're

in the wrong house" were not hearsay because they were not

offered to prove the truth of the matters asserted.    To the

contrary, when placed in context with the prior events and

statements, it exemplifies the furtherance of their purpose to

rob Washington.     See Hamm v. Commonwealth, 16 Va. App. 150, 156,

428 S.E.2d 517, 521 (1993) ("If a statement is offered for any

purpose other than to prove the truth or falsity of the contents

of the statement, such as to explain the declarant's conduct or

that of the person to whom it was made, it is not objectionable

as hearsay.").    We find no error in the admission of each of

these statements.    The trial court reached the right result for

the wrong reason, and we will not disturb its judgment.

Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,

313 (1992).




                                - 12 -
             III.   ACCESSORY-AFTER-THE-FACT INSTRUCTION

     Paxton next argues that he was entitled to an

accessory-after-the-fact instruction because his letter offered

assistance to Thrower after the commission of the crimes.   We

disagree.

     "It is firmly established . . . that an accused cannot be

convicted of a crime that has not been charged, unless the crime

is a lesser-included offense of the crime charged."

Commonwealth v. Dalton, 259 Va. 249, 253, 524 S.E.2d 860, 862

(2000); see also U.S. Const. amend. XIV; Va. Const. art. 1, § 8.

Our Supreme Court determined that the crime of being an

accessory after the fact is not a lesser-included offense of the

crime of murder.

            There are three elements to the crime of
            being an accessory after the fact to a
            felony. First, the felony must be complete.
            Second, the accused must know that the felon
            is guilty. Third, the accused must receive,
            relieve, comfort, or assist the felon. It
            is essential that the accused, at the time
            he assists or comforts the felon, has
            notice, direct or implied, that the felon
            committed the crime. Manley v.
            Commonwealth, 222 Va. 642, 645, 283 S.E.2d
            207, 208 (1981); Wren v. Commonwealth, 67
            Va. (26 Gratt.) 952, 956 (1875).

            While convicting an accused of being an
            accessory after the fact requires proof that
            the accused provided assistance to a person
            with knowledge that the person was guilty of
            a completed felony, no such proof is
            required to convict an accused of murder.
            Thus, the crime of being an accessory after
            the fact contains an element that the crime
            of murder, the charged offense in the

                                - 13 -
            present case, does not contain. Therefore,
            the crime of being an accessory after the
            fact is not a lesser-included offense of the
            crime of murder.

Dalton, 259 Va. at 253-54, 524 S.E.2d at 862-63.

     "[B]efore a defendant can be tried and convicted of being

an accessory after the fact, he must be charged with that

offense.   Unless such a charge is specifically made, neither the

Commonwealth nor an accused is entitled to an

accessory-after-the-fact instruction."     Id. at 255, 524 S.E.2d

at 863.    Paxton was not charged with the crime of being an

accessory after the fact to the crime of murder.    To the

contrary, he was charged with first-degree murder.

Consequently, Paxton was not entitled to an

accessory-after-the-fact instruction, and the trial court did

not err in refusing to instruct the jury on that principle.

                 IV.   CLARIFICATION OF JURY QUESTION

     Paxton next argues that the trial court erred in not

clarifying Instruction 7 regarding concert of action and

Instruction 13 regarding principal in the second degree when the

jury requested clarification.    We disagree.   Rule 5A:18 states

in pertinent part:

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


                                - 14 -
     At trial, the jury asked the court to clarify Instructions

7 and 13.    When the court asked the Commonwealth and defense

counsel if either objected to it telling the jury that the two

instructions stated the law applicable to the case and to read

them again carefully, Paxton's attorney unequivocally waived any

objection.    He stated, "I don't have any objection."   He further

informed the trial court that "any comment or editorial from

counsel at this point would do more harm than good.      We've

argued these instructions at length.      It's up to the jurors now

to sort them out as best they can . . . ."

     Paxton, therefore, waived any objection he may have

possessed and is barred from raising this issue on appeal.

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

                    V.   SUFFICIENCY OF THE EVIDENCE

             When the sufficiency of the evidence is
             challenged on appeal, it is well established
             that we must view the evidence in the light
             most favorable to the Commonwealth, granting
             to it all reasonable inferences fairly
             deducible therefrom. The conviction will be
             disturbed only if plainly wrong or without
             evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).

     Paxton argues lastly that the evidence was insufficient to

convict him of the offenses for which he was charged.       He

contends that there was no direct evidence to link him to the


                                 - 15 -
crime committed.    From the evidence, the jury could properly

infer that Paxton agreed to assist Thrower in the attempted

robbery of Washington.

     Concert of action is defined as

             an "action that has been planned, arranged,
             adjusted, agreed on and settled between the
             parties acting together pursuant to some
             design or scheme." Rollston v.
             Commonwealth, 11 Va. App. 535, 542, 399
             S.E.2d 823, 827 (1991) (quoting Black's Law
             Dictionary 262 (5th ed. 1979)). All
             participants in such planned enterprises may
             be held accountable for incidental crimes
             committed by another participant during the
             enterprise even though not originally or
             specifically designed.

Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41,

43 (1994).    Thrower threatened to return to 3101 Garland Avenue

with his "boys" and rob Washington.      Approximately an hour

later, he returned with an AK-74 assault rifle and three

accomplices.    Thrower entered the front of the house while the

three accomplices forced entry into the rear of the house.

Gunfire erupted, wounding Brinkley and killing two-year-old

Kayla.

     Following the shootings, the police collected evidence from

the crime scene as well as Thrower's vehicle.      Blood was

discovered on the back porch of the apartment.      Additional blood

was found on a rubber hose in the alleyway and on a Timberland

boot located in Thrower's vehicle.       Paxton was treated at the

hospital late that evening for a gunshot wound to his foot.


                                - 16 -
Despite denials, DNA analysis identified Paxton as the

contributor of those blood samples, thus placing him on the back

porch during the shooting as well as in Thrower's Cadillac.

     In addition to the blood evidence, other evidence was also

collected.   The police conducted a gunshot residue test on

Paxton and found primer residue on his hand.   Furthermore,

Paxton's own written statement placed him at the scene.    A

letter from Paxton, addressed to Thrower, was intercepted.     The

letter indicated that a witness had seen Paxton on the back

porch during the shooting.   As a result, he suggested testimony

to explain the events of that evening.

     Based on the evidence, the jury could conclude that Paxton

agreed to assist Thrower in robbing Washington and was one of

the men who entered the rear of the apartment during the

shootings.   Although the shootings may not have been part of the

original plan, since Paxton participated in the planned

enterprise he may be held accountable for the incidental crimes.

Berkley, 19 Va. App. at 283, 451 S.E.2d at 43.   Therefore, the

evidence was sufficient to prove beyond a reasonable doubt that

Paxton committed the charged offenses.

     The judgment of the trial court is affirmed.

                                                          Affirmed.




                              - 17 -
