                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia


ANTOINE WILKERSON
                                              OPINION BY
v.   Record No. 2404-99-2              JUDGE ROBERT J. HUMPHREYS
                                           NOVEMBER 21, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          David M. Gammino; William T. Linka
          (Boatwright & Linka, on brief), for
          appellant.

          Amy L. Marshall, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.

     Antoine Wilkerson appeals his convictions after a jury trial

of first degree murder and robbery, claiming that the trial court

erred by 1) refusing to allow Wilkerson to introduce evidence of

inconsistent statements made by a Commonwealth witness; 2)

allowing the Commonwealth to introduce hearsay statements

pertaining to a conspiracy, before the Commonwealth had

independently established a conspiracy; 3) finding the evidence

sufficient to convict Wilkerson of robbery; and 4) finding the

evidence sufficient to convict Wilkerson of murder.   Wilkerson

further contends that the trial court erred in setting aside the

jury's conviction of Wilkerson for accessory after the fact to

first degree murder, and failing to set aside the conviction for
first degree murder. 1   We disagree and, for the reasons that

follow, affirm Wilkerson's convictions.

                                BACKGROUND

     On the evening of December 8, 1997, between approximately

9:00 p.m. and 9:30 p.m., Carol Goring Smith was shot and killed as

she returned home from work and began to walk up the stairway

toward her second floor apartment at the Woods Edge Apartment

Complex.    Another tenant of the apartment building, Ms. Cozzette

Dushon Brown, who lived in the apartment located at the top of the

stairway, was cooking in her kitchen when she heard scuffling

noises outside her doorway, as if someone had fallen down the

steps.   She also heard a "fade-away scream" that sounded like it

came from a woman.    Brown went to her bedroom window and looked

outside.    At that point, she saw a light-colored car back out of

the parking lot to the apartment building.    She also saw Smith's

car, a burgundy, four-door Chrysler Concord, back out of the

parking lot, and the two cars drove away.

     Ms. Brown's boyfriend was also in her apartment and witnessed

the same events.   He immediately went to the doorway of the

apartment and went outside to the breezeway to see what had

happened.   He then came back and called the police.   While he was


     1
       The jury also convicted Wilkerson of accessory after the
fact to robbery. This verdict was, likewise, set aside by the
trial court. However, this conviction and action of the trial
court in setting it aside have not been raised by Wilkerson as
issues on this appeal.


                                - 2 -
on the phone with the police, Brown went to the doorway and looked

outside.   She saw Smith lying at the bottom of the stairway with

blood "all down in the floor."

     Detective Daryl L. Street ("Detective Street") of the

Richmond Police Department was called to investigate and arrived

on the scene at approximately 10:32 p.m.   The scene was secure,

and Smith's body had already been transported to MCV hospital.

Detective Street observed that Patrick Smith, Smith's husband, was

not present at the scene at that time.   However, he returned to

the scene at approximately 12:15-12:30 a.m.

     On December 12, 1997, at approximately 11:00 p.m., Officer

Steve Hines of the Richmond Police Department witnessed Smith's

Chrysler "come through [his] radar at about 57 or 58 miles per

hour in a 35 zone."   Officer Hines chased the vehicle in his squad

car until it hit some gravel and dirt and came to rest on the rear

of a parked Cadillac.   Although Officer Hines couldn't keep his

eyes on the vehicle at all times due to the dust and gravel in the

air, he observed Chi-Lief Brisbon get out of the passenger side of

the vehicle as he approached the car.    He saw no one else leave

the car, and found no one else inside the car.

     Since he had received a radio transmission stating that the

Chrysler was linked to a violent crime, Hines apprehended Brisbon

and placed him under arrest.   Although there was no one else found

in the car, Brisbon remained adamant that he had not been driving

the car, but that another individual had been driving the car.

                                 - 3 -
However, Brisbon was ultimately charged with, and pled guilty to,

the unauthorized use of the vehicle.

     While Brisbon was in custody for this matter, Detective

Street interviewed him regarding his knowledge of the Chrysler and

Smith's murder.   During the first interview, which took place in

December of 1997, Brisbon denied having any knowledge about the

Chrysler and Smith, and continued to contend that another person

had been driving the car; specifically, "Nard," a/k/a Kenardo

Foster.   Brisbon told Detective Street that Foster could tell him

everything about the car.   Upon investigating the car, a print

belonging to Foster was lifted from the interior of the driver's

side window.

     During a second interview, which also took place in December

of 1997, Brisbon gave the same statement and again contended that

Foster could tell Detective Street everything about the car.

However, in April of 1999, after Brisbon had been incarcerated for

another murder, Brisbon spoke to Detective Street a third time.

It was during this interview that Brisbon told Detective Street

that he was involved with Smith's murder.   He named Foster,

Wilkerson and Patrick Smith as the other individuals involved.

     On December 14, 1998, a grand jury indicted Wilkerson for

capital murder in the course of a robbery, carjacking, use of a

firearm in the commission of a murder, possession of a firearm as

a convicted felon, capital murder for hire, and robbery.   No



                               - 4 -
indictment charging Wilkerson with accessory after the fact to

murder or robbery was returned by the grand jury.

       The first witness to testify at trial was Mark DeLoatch, a

tenant who lived in an apartment located at the opposite end of

the building from Smith's apartment.    DeLoatch testified that he

had witnessed the murder.   However, DeLoatch did not come forward

to the police until Detective Street came to interview apartment

tenants in December of 1997.

       DeLoatch testified that during the interview, he informed

Detective Street that on the evening of December 8, 1997, after he

had come home from work, he was walking his dog on the lawn in

front of the building.   He noticed two young black males standing

in front of the stairwell to Smith's apartment, talking for about

15 or 20 minutes.   One of the males was shorter than the other

one.   At some point, the shorter male went to his car and then

came back.   DeLoatch identified Wilkerson as the "shorter male" at

trial.

       DeLoatch next saw Smith pull into the parking lot and park

under a street lamp.   He saw Smith get out of the car, pick up a

bag of groceries and her other belongings, and walk toward her

apartment.   As she approached the stairway to her apartment,

DeLoatch heard elevated voices.   He then testified he heard Smith

yell "something to the effect of no, no, no . . . please don't."

Next, DeLoatch heard a gunshot and saw Smith's body collapse.

DeLoatch observed that it was the taller male who held the gun and

                                - 5 -
shot Smith.   Then he watched the shorter male walk to a car, which

was a "smaller vehicle . . . a Honda Civic or some form of

hatchback or Escort."   The taller male followed the shorter male

to the parking lot, and got into Smith's car.     The shorter male in

the smaller car backed out and waited for the taller male to get

into Smith's car.   At that point, both cars left the parking lot,

with the light car being followed by Smith's car.

     Detective Street testified that after his interviews with

Brisbon and DeLoatch, as well as further investigation, he

eventually determined that Wilkerson was the owner of a light

blue, two-door, Honda Civic, matching the description of the car

that witnesses saw in the parking lot on the night of Smith's

murder.

     Street testified that after he apprehended and Mirandized

him, Wilkerson admitted knowing Foster.     Wilkerson told Detective

Street that he had picked Foster up and they were together all day

on the day of the murder.   He said they went to a Southside

residence to see another individual called "Scar" and that while

they were there, Scar gave Foster a black steel revolver.

     Wilkerson first told Detective Street that Foster then asked

him to take him over to the apartments where Smith lived to pick

up his girlfriend's car.    Wilkerson said he took Foster there in

his car, a light blue Honda Civic.      Once they arrived, he said he

dropped Foster off and left immediately.



                                - 6 -
       Later, he changed his story and told Street that after

driving Foster to the apartment complex, he had stopped for a

moment and gotten out of the car to check that his trunk light was

off.   Wilkerson's story changed a third time when he indicated

that, after he dropped Foster off at Smith's apartment complex, he

saw a burgundy car arrive.   He saw a woman, that he didn't know,

get out of the vehicle and go to the trunk to get some groceries.

Wilkerson said it was then that he left the parking lot.    When he

got to the stoplight, he stated he saw the burgundy vehicle fly

past him and wasn't sure whether it was Foster driving it or not.

Wilkerson claimed he then went to his girlfriend's house.    He said

he didn't know a murder had taken place until he saw it the next

day on the news and started piecing it together.

       Wilkerson's story changed again later.   This time, Wilkerson

told Street that when he and Foster arrived, they waited in the

Honda for awhile.   They saw Smith pull up, get her groceries, and

start walking toward the staircase.     Foster said "look at that

car, it's phatt" and said "let's go get the keys."    Foster then

stepped from the Honda as Smith was walking toward the breezeway,

and walked in the same direction.   Wilkerson stated that he asked

Smith if he could help her with her groceries and she declined.

As she walked towards the breezeway, Wilkerson stepped out of his

car, went toward the back of the car and walked about 4-5 steps

toward where Foster and Smith were.     He claimed he did this to see

if Foster was able to get the car, and because he wanted to find

                                - 7 -
out if he could leave or if he needed to wait for Foster.     The

next thing he knew he saw a flash and heard a scream, and saw the

bag of groceries falling.   Wilkerson told Street that Foster had

shot Smith.   Wilkerson stated he then left the complex and thought

Foster was right behind him but he wasn't.   He then met back up

with Foster behind the residence of Vanessa Taylor, the mother of

Wilkerson's child.

     At first, he claimed that it was only him and Foster there

and that Foster was driving Smith's Chrysler.   This story changed

also, and Wilkerson claimed that others were there.   Specifically,

Chi-Lief Brisbon, "Rob" and "Smoke."

     In addition, Detective Street testified that he had observed

Foster to be about 6' 1" to 6' 2" in height.    He observed

Wilkerson to be 5' 7" to 5' 8".

     Counsel for Wilkerson asked several questions of Detective

Street, based upon a transcript of an interview with Brisbon, in

an attempt to introduce prior inconsistent statements to impeach

the credibility of Brisbon.   The trial court sustained the

objection of the Commonwealth to these questions, holding that

Wilkerson had failed to lay the proper foundation for introduction

of the evidence.   Specifically, the trial court stated to counsel

"you have to warn the witness that you have evidence that is going

to impeach him, the place, and time, and who is present, and did

you make this statement.    If he says no then you can say look at



                                - 8 -
the transcript and then its up to the jury to decide what is the

truth, or neither."

     Brisbon also testified during the trial.    Brisbon explained

to the jury that he had come to Richmond from New Jersey about a

week before Thanksgiving in 1997.   A few days after he arrived, he

met Foster at the place he was staying.    Brisbon testified that

Foster told him he had a "job" for him to do and said that he

would explain it to him at a later time.

     During this testimony, Wilkerson's counsel objected to the

testimony concerning Brisbon's conversations with Foster on the

grounds of hearsay, as well as on the basis that Foster was a

"co-defendant" and not subject to cross-examination by Wilkerson.

The trial court held that the statements were admissible "in a

conspiracy" or in showing that "they're principals in planning any

kind of crime" and overruled counsel's objection.

     Brisbon went on to testify that he and Foster met again and

it was then that Foster told Brisbon he wanted his help with a

murder.   Foster explained to Brisbon that he needed him "to watch

the lady, watch how she moves, you know, when she come home, when

she leave, we going to shoot her, take her car, and make it look

like it was a carjacking."   Foster also told Brisbon that he

wanted him to shoot the lady.    Foster explained that there would

be other people involved who would watch Brisbon's back and let

him know if the police came.    Foster claimed that a "guy was going

to pay [them] for doing it" and stated that they would be "getting

                                - 9 -
paid . . . from insurance."    He also told Brisbon that he should

take the car to New Jersey after the murder and get rid of it so

that they could split the money.

     Brisbon testified that the day before the murder, he was

sitting in a car listening to music and smoking marijuana with

Wilkerson.   Wilkerson told him at that time that Foster would come

to see Brisbon the next day.   Brisbon stated that Wilkerson was

"referring to the murder" when he made this statement.     In

addition, Brisbon stated that before the murder, he heard

Wilkerson and Foster talking and saying "little things" about

insurance and Patrick Smith.

     On the night of the murder, however, Brisbon did not

participate because he was in the custody of "Deputy Andrews."

However, Brisbon saw Wilkerson and Foster, at about 11:00 p.m. to

11:30 p.m. that night.   Brisbon testified that they were behind

Taylor's house, sitting in the stolen Chrysler.     Wilkerson was in

the passenger seat of the car, Foster was in the driver seat and

Patrick Smith was in the back seat.      Wilkerson called Brisbon over

to the car and said "what happened to you."     It was then that

Brisbon saw "money change from Patrick Smith's hand to Kenardo's

hand."

     Contrary to this, Natasha Brown, Wilkerson's girlfriend,

testified that, although Wilkerson did not pick her up from work

that evening as he usually did, he came home that night at

10:20 p.m. and did not leave again.

                                - 10 -
        An employee of American General Life Insurance Company

testified that a life insurance policy was taken out on behalf of

Smith on May 1, 1994 for a face amount of $25,000.    Patrick Smith

signed a "claimant statement" requesting assignment of the

proceeds the day after Smith was murdered.    He received $20,837.07

(the face amount minus funeral and burial expenses) on January 6,

1998.

        After all the evidence was received, the jury was instructed

on the following offenses:    (1) capital murder for hire (and the

lesser-included offense of first degree murder); (2) use of a

firearm in the commission of capital murder; (3) first degree

murder while committing robbery; (4) use of a firearm in the

commission of murder; (5) robbery; (6) accessory after the fact to

murder; and (7) accessory after the fact to robbery.      The

instructions on accessory after the fact to murder and robbery

were offered by Wilkerson although he was never charged with

accessory after the fact of murder or robbery.

        The jury found Wilkerson guilty of robbery, the

lesser-included offense of first degree murder, accessory after

the fact to murder and accessory after the fact to robbery.      The

jury acquitted Wilkerson of the firearm charges and also found him

not guilty of committing capital murder while committing robbery.

        After the jury was dismissed, the court considered final

motions.    Wilkerson made a motion to set aside the verdicts "as

being contrary to the law and evidence."    Essentially, he argued

                                 - 11 -
that since the jury found Wilkerson guilty of robbery and murder,

it was inconsistent for the jury to also find him guilty of

accessory after the fact of these offenses.   As a result, he asked

the trial court to set aside the convictions for robbery and

murder and confirm only the lesser convictions for accessory after

the fact.   The trial court agreed that the verdicts were

inconsistent, but set aside the accessory after the fact

convictions and upheld the convictions for murder and robbery.    As

a result, Wilkerson was sentenced to 7 years for the robbery

conviction and 60 years for the murder conviction.

                              ANALYSIS

     It is fundamental that on appeal "we review the evidence in

the light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom."    Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).

                    A.   Inconsistent Statements

     On appeal, Wilkerson first argues that the trial court erred

in refusing to allow him to introduce evidence of inconsistent

statements made by Brisbon.   As noted above, Wilkerson attempted

to admit the alleged inconsistencies through the testimony of

Detective Street.

     We agree with the Commonwealth that when taking exception to

the court's ruling in this regard, Wilkerson failed to make the

statements or evidence he was attempting to introduce part of the

record on appeal.   "[W]hen a party's evidence has been ruled

                               - 12 -
inadmissible, the party must proffer or avouch the evidence for

the record in order to preserve the ruling for appeal; otherwise,

the appellate court has no basis to decide whether the evidence

was admissible."   Zelenak v. Commonwealth, 25 Va. App. 295, 302,

487 S.E.2d 873, 876 (1997) (citation omitted).

                       B.   Hearsay Statements

     Wilkerson next argues that the trial court erred in allowing

the Commonwealth to introduce hearsay statements pertaining to a

conspiracy, before the Commonwealth had independently established

a conspiracy.   Specifically, Wilkerson points to Brisbon's

testimony regarding statements made to him by Foster concerning

the robbery and murder.

     "The general rule is that there must be evidence

establishing a prima facie case of conspiracy before the

declarations of a co-conspirator, made out of the defendant's

presence, may be admitted into evidence."    Floyd v.

Commonwealth, 219 Va. 575, 581-82, 249 S.E.2d 171, 175 (1978).

The purpose for this threshold requirement is to insure against

"the risk that a co-conspirator may be making calculated

statements to divert attention[,] by implicating others for his

or another's wrongdoing . . . ."    Jones v. Commonwealth, 11 Va.

App. 75, 82, 396 S.E.2d 844, 848 (1990).    In addition, in these

situations, "the trier-of-fact typically will not have an

opportunity to hear the declarant cross-examined, or view the

declarant's demeanor or the evidence first hand."       Id.   Thus, "a

                               - 13 -
co-conspirator's declarations, like hearsay statements

generally, are inadmissible absent some indicia of reliability."

Id.

      "A criminal conspiracy is merely an agreement between two

or more persons to commit a crime . . . ."   Simpson v.

Commonwealth, 227 Va. 557, 567, 318 S.E.2d 386, 392 (1984).

Prima facie evidence was defined in Babbit v. Miller, 192 Va.

372, 379, 64 S.E.2d 718, 722 (1951), as "evidence which on its

first appearance is sufficient to raise a presumption of fact or

establish the fact in question unless rebutted."   Here, there

was no prima facie evidence of the existence of an agreement

between Foster, Brisbon and Wilkerson prior to Brisbon's

testimony regarding his conversations with Foster.

              "Ideally, it is always more orderly to
           present sufficient evidence to establish the
           prima facie existence of the conspiracy and
           to identify the conspirators before
           presenting detailed evidence as to the
           substantive offenses and the acts and
           declarations of the conspirators . . . . As
           a practical matter, the proof is often
           'sprawling' and at certain stages of the
           trial may appear to present a hodgepodge of
           acts and statements by various persons. In
           the final analysis, however, it is always
           necessary that the evidence be connected and
           enmeshed so as to present a logical sequence
           of evidence linking the defendant with the
           charges against him. The very nature of
           such cases requires that broad discretion be
           vested in the trial court with respect to
           the order of proof."

Floyd, 219 Va. at 582, 249 S.E.2d at 175 (citations omitted).



                              - 14 -
     Thus, while Brisbon's testimony should not have been admitted

pursuant to the conspiracy exception to the hearsay rule until a

conspiracy was established, Brisbon's later testimony, which

consisted of his firsthand knowledge of certain facts, did

establish a criminal conspiracy between Foster, Brisbon,

Wilkerson and Patrick Smith.

     "The order of presentation of evidence . . . is usually a

matter left to the discretion of the trial court and, absent an

abuse of discretion, will not be disturbed."   Cirios v.

Commonwealth, 7 Va. App. 292, 300, 373 S.E.2d 164, 168 (1988)

(citations omitted).   "[S]tatements, otherwise inadmissible as

hearsay, may be 'conditionally admitted subject to being

"connected up" by subsequent independent proof of concert of

action.'" . . . [Thus,] [w]hen the record shows facts from which

the existence of a conspiracy could reasonably be inferred, the

case will not be reversed because proof of the conspiracy came at

the wrong time."   Floyd, 219 Va. at 582, 249 S.E.2d at 175

(citations omitted).   Accordingly, under these circumstances, we

find, while the trial court erred in this regard, such error was

harmless for the reasons noted.   See Galbraith v. Commonwealth, 18

Va. App. 734, 742, 446 S.E.2d 633, 638 (1994); Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc).




                               - 15 -
                     C.   Sufficiency of the Evidence

     Wilkerson next argues that the trial court erred in finding

the evidence sufficient to convict him of robbery and

first-degree murder.

               Where the sufficiency of the evidence is
          challenged after conviction, it is our duty
          to consider it in the light most favorable to
          the Commonwealth and give it all reasonable
          inferences fairly deducible therefrom. We
          should affirm the judgment unless it appears
          from the evidence that the judgment is
          plainly wrong or without evidence to support
          it.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975).   "If there is evidence to support the conviction, an

appellate court is not permitted to substitute its own judgment

for that of the finder of fact, even if the appellate court might

have reached a different conclusion."   Commonwealth v. Presley,

256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).

     Moreover, "[t]he credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented."   Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995) (citations omitted).    "In its

role of judging witness credibility, the fact finder is entitled

to disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his guilt."




                               - 16 -
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998) (citation omitted).

     "[E]very principal in the second degree and every accessory

before the fact may be indicted, tried, convicted and punished

in all respects as if a principal in the first degree . . . ."

Charlton v. Commonwealth, 32 Va. App. 47, 50, 526 S.E.2d 289,

290 (2000) (citing Code § 18.2-18) (emphasis in original).

Given the evidence of Brisbon and the four inconsistent

statements of Wilkerson which corroborate in some measure the

testimony of Brisbon, viewing the evidence in the light we must,

we find that the finder of fact could conclude beyond a

reasonable doubt that Wilkerson was a principal in the second

degree and therefore, was guilty of committing the charged

offenses.

                  D.   Accessory After the Fact

     Finally, Wilkerson contends on appeal that the trial court

erred in setting aside the jury's conviction of Wilkerson for

accessory after the fact of first degree murder, and failing to

set aside the conviction for first degree murder.2   We disagree.




     2
       On appeal, Wilkerson also argues that the jury's
conviction of Wilkerson for both murder and accessory after the
fact of murder, violates his Fifth Amendment right against
double jeopardy. However, Wilkerson never raised this argument
before the trial court and raises it for the first time on
appeal. Accordingly, we do not address this issue. See Swann
v. Commonwealth, 247 Va. 222, 441 S.E.2d 195 (1994).


                              - 17 -
     We have previously held that inconsistent verdicts rendered

by a jury do not constitute reversible error.     See, e.g., Akers

v. Commonwealth, 31 Va. App. 521, 529, 525 S.E.2d 13, 17 (2000);

Tyler v. Commonwealth, 21 Va. App. 702, 707-09, 467 S.E.2d 294,

296-97 (1996); Wolfe v. Commonwealth, 6 Va. App. 640, 647-48,

371 S.E.2d 314, 318 (1988).   The issue of inconsistent verdicts

implicates no constitutional guarantee.     See Wolfe, 6 Va. App.

at 648, 371 S.E.2d at 318.    Where a jury renders inconsistent

verdicts, "a search of the trial record in an attempt to

reconcile such inconsistency is neither appropriate nor

required."   Id. at 650, 371 S.E.2d at 319.    "As long as the

evidence supports both verdicts, they 'will be upheld, despite

the apparent inconsistency.'"    Akers, 31 Va. App. at 529, 525

S.E.2d at 17 (quoting Pugliese v. Commonwealth, 16 Va. App. 82,

96, 428 S.E.2d 16, 26 (1993)).    Here, the evidence clearly

cannot support both a verdict of guilty as a principal to murder

and a verdict of guilty of accessory after the fact to the same

murder.

     While we have not previously considered the situation

presented here, in doing so, we note that the Supreme Court of

Virginia has recently held that "[w]hile 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

                                - 18 -
being an accessory after the fact contains an element that the

crime of murder, the charged offense in the 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."   Commonwealth v. Dalton, 259 Va. 249, 253-54, 524

S.E.2d 860, 862-63 (2000).   "Therefore, [the Court held] that,

before 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 254, 524 S.E.2d

at 863.

     Wilkerson was never charged with accessory after the fact.

It was therefore error to instruct the jury that they could

convict him of accessory after the fact as a lesser-included

offense of murder.   Thus, we hold that the trial court was

correct in rectifying this error by setting aside this

conviction.

                                                   Affirmed.




                              - 19 -
