                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia


GREGORY WARREN FOX
                                          MEMORANDUM OPINION * BY
v.   Record No. 1717-02-1                  JUDGE ROBERT P. FRANK
                                               JUNE 24, 2003
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge

          Joseph A. Migliozzi, Jr. (Hooker & Migliozzi,
          on brief), for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Jerry W. Kilgore, Attorney
          General, on brief), for appellee.


     Gregory Warren Fox (appellant) appeals his convictions after

a jury trial of second-degree murder, in violation of Code

§ 18.2-32, and use of a firearm during the commission of a felony,

in violation of Code § 18.2-53.1.   He argues the trial court erred

(1) in refusing to permit a jury instruction on manslaughter and

(2) in overruling his motion for a mistrial, based on a witness's

reference to appellant's silence after his arrest.   For the

reasons stated below, we reverse the convictions.

     After both parties had presented evidence, the trial court

considered the instructions that the parties wanted submitted to



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the jury.    The court allowed instructions on self-defense.

Appellant then offered a jury instruction defining voluntary

manslaughter.    Neither party made any argument as to this

instruction.    The court denied the instruction, stating

"[t]here's no manslaughter instruction with a plea of

self-defense."

     Appellant argues the trial court erred in refusing his

instruction for voluntary manslaughter, arguing the court's

reasoning was incorrect and the evidence supported the

instruction.    The Commonwealth concedes the trial court's reason

for excluding the instruction was incorrect.   However, the

Commonwealth contends appellant did not preserve this argument

and, further, the trial court should be affirmed under "right

result, wrong reason" analysis.

     Appellant did preserve his argument for a voluntary

manslaughter instruction.   He presented the instruction to the

trial court, and the instruction is in the record.   When

presenting the instruction to the trial court, defense counsel

said, "[M]y client doesn't feel like it's justified under the

evidence."   The Commonwealth interprets this statement to mean

appellant did not actually want a voluntary manslaughter

instruction.    However, this interpretation is incorrect, given

appellant tendered the instruction to the court.   Although

counsel's statement may be vague, appellant wanted the jury

instructed on manslaughter.   The trial court clearly understood

                                - 2 -
that appellant was offering the instruction for presentation to

the jury, not that appellant withdrew it from consideration.

The trial court further expressed his reasons for not granting

the instruction.

     The Commonwealth also argues appellant's presentation of

this instruction, after the instruction for first-degree and

second-degree murder were accepted by the trial court, was

untimely and did not preserve the issue for appeal. 1    However,

the dialogue between counsel and the trial court concerning the

instructions had not concluded when appellant offered his

voluntary manslaughter instruction.    The trial court had an

adequate and timely opportunity to rule on the instruction,

which he did.   Appellant did preserve his argument for a

manslaughter instruction.

     The Commonwealth concedes the trial court's exclusion of

the manslaughter instruction, because "[t]here's no manslaughter

instruction with a plea of self-defense," was wrong. 2    The

Commonwealth instead contends the evidence did not support the

giving of the instruction to the jury.    See Commonwealth v.

Vaughn, 263 Va. 31, 36, 557 S.E.2d 220, 222-23 (2002).      The


     1
       Appellant objected to the first-degree murder instruction
on the ground that the evidence was insufficient to support such
an instruction. His objection was overruled.
     2
       "'The plea of self-defense and of passion . . . are not in
conflict with each other.'" McClung v. Commonwealth, 215 Va.
654, 657, 212 S.E.2d 290, 293 (1975) (quoting Wilkins v.
Commonwealth, 176 Va. 580, 583, 11 S.E.2d 653, 655 (1940)).

                               - 3 -
Commonwealth argues this Court should apply the principle of

"right result, wrong reason" in this case.    However, the

Commonwealth ignores the requirements of this rule.

           "An appellate court may affirm the judgment
           of a trial court when it has reached the
           right result for the wrong reason."
           [Driscoll v. Commonwealth, 14 Va. App. 449,
           452, 417 S.E.2d 312, 313 (1992)]. However,

                The rule does not always apply. It
                may not be used if the correct
                reason for affirming the trial
                court was not raised in any manner
                at trial. In addition, the proper
                application of this rule does not
                include those cases where, because
                the trial court has rejected the
                right reason or confined its
                decision to a specific ground,
                further factual resolution is
                needed before the right reason may
                be assigned to support the trial
                court's decision.

           Id. at 452, 417 S.E.2d 313-14 (citation
           omitted).

     Here, the right reason was never presented to the trial

court.   The Commonwealth never argued at trial that the evidence

did not support a manslaughter instruction.   The Commonwealth

concedes the trial court's rationale for the exclusion of the

manslaughter instruction was erroneous.   Since the Commonwealth

did not argue at trial that the evidence did not support the

instruction, we are obligated to find the trial court erred in

excluding the instruction. 3


     3
       The Commonwealth did not argue harmless error, either in
its brief or at oral argument.

                               - 4 -
                           CONCLUSION

     As the trial court improperly excluded a jury instruction,

we reverse the convictions and remand for a new trial if the

Commonwealth be so inclined.   In so doing, we need not address

the mistrial issue, since the issue is unlikely to arise in a

new trial.

                                            Reversed and remanded.




                               - 5 -
