     VIRGINIA:
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Cit:yo/~on               Friday       the 27th   dayO/     June, 2014.

Robert King 	Via,                                                   Appellant,

 against 	      Record No. 131574 

                Court of Appeals No. 1759-12 1 


Commonwealth of Virginia, 	                                         Appel


                                                  Upon an appeal from a
                                            judgment rendered by the Court
                                            of Appeals of Virg   a.


        Upon consideration of the record, pleadings, briefs and
argument of counsel,              Court is of the opinion that there is error
in       Court of Appeals'        judgment and, for the reasons stated below,
we will reverse the judgment of the Court of Appeals.
        On September II, 2010, three masked gunmen entered Frank
Auche's residence, detained and threatened the               rsons in t
residence, and robbed Auche.          When the police arrived, the gunmen
fled.       ood recove       near the crime scene matched a DNA profile
for Reginald Jones.       When Jones was arrested, he identifi             Robert
King Via, Jr., Samuel Sanchez and a person known as "Carl" as
participants in          crime.      Via was arrest      and indicted for crimes
associated with the invasion of Auche's home.             Via denied any
involvement with the crimes but admitted he knew Jones, Sanchez and
Carl Gentline, the person known as "Carl."            No forensic evidence
connected Via to the cr
        Sanchez and Gentline both testif          at Via's trial.        Sanchez
testified that he had entered a plea agreement in whi               he agreed to
provi      truthful testimony as to any co-defendants who might be
tr         Gentline mainta          that, while he drove the getaway car, he
did so under           ss because     was afraid of the other participants,
who were armed.        The Commonwealth never charged Gentline with any
crimes relating to the invasion of Auche's home.            Both Sanchez and
Gentline testified that         a partic         in the home invas
          a proffe       the following jury instruction, Jury Instruction
A, regarding Gentline's testimony:
        Carl Genteline [sic] has testified that      was an
        accomplice     the commission of the crimes charged in the
             ctments.  While you may find your verdict upon his
        uncorroborated testimony, you shou    consider    s
        testimony with        care and you are cautioned as to the
        danger of convict     the defendant upon the
        uncorroborated testimony of an accomplice.    Nevertheless,
        if you are satisfied       the evidence of t    guilt of
        the defendant beyond a reasonable doubt, the     fendant
        may     convicted upon the uncorroborated evidence of an
        accomplice.

Although the trial court             ed a similar instruction rega         ng
Sanchez' testimony, it refused Jury Instruction A             cause the court
     d "not th     k Mr. Gentline meets the test of an accomplice."         A
jury convi           Via of all crimes charged, except one, and sentenced
him to 128 years and one day imprisonment.
       Via appealed his convictions to the Court of Appeals.          As
relevant here, Via asserted that the trial court erred in refusing
Jury Instruction A.       Although the question of Gentline's status as
an accomplice was inherent           this assignment of error, t      Court of
Appeals did not address that issue directly.            Rather, the Court of
        Is, in a      r curiam opinion, affirmed         trial court's re       al
of        proposed jury inst         on, stating that


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      [e]ven if Gentline was considered an accomplice to the
     crimes, his testimony was corroborated by that of
     Sanchez, who admitted that he, appellant, and Jones were
     the three men who entered Auche's home and threatened
     those inside at gunpoint.

Via v. Commonwealth, Record No. 1759-12-1, sl       op. at 3 (May 22,
2013) (footnote omitted).    Via appealed from the Court of Appeals'
judgment, asserting, inter alia, that the Court of Appeals erred in
affirming the trial court's refusal of Jury Instruction A and in
ruling that Sanchez' testimony corroborated Gentline's testimony.
     The parties do not dispute that Jury Instruction A correctly
states the law and should be given if a witness whose testimony is
at issue is an accomplice and if his or her testimony is
uncorroborated.    Jones v. Commonwealth, 111 Va. 862,      868,   69 S.E.
953, 955 (1911).   The test for whether a witness is an accomplice is
"whether he could be indicted         the same offense."     Guthrie v.
Commonwealth, 171 Va. 461,     469, 198 S.E. 481, 484    (1938).   Whether
accomplice testimony is corroborated is subject to the long
established principle that accomplice testimony cannot be
corroborated by the testimony of another accomplice.         Jones, 111 Va.
at 868, 69 S.E. at 955.
     In this case, Gentline qualifi       as an accomplice because, by
his own admission, he drove the getaway car and, therefore, could
have been indicted for the same offense.                    Grant v.
Commonwealth, 216 Va. 166, 168-69, 217 S.E.2d 806, 808
(1975) (finding driver of getaway car a principal          the second
degree).   Neither the      ct that he was not charged      th any cr
relating to the home invasion, nor the Commonwealth's claim that he
lacked criminal intent are relevant to determining whether Gentline

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could have been indicted for the offenses associated with the home
invasion.     Gentline's testimony, therefore,    required corroboration.
However, none of the       dence produced by the Commonwealth
corroborated Gentline's testimony.        Furthermore, contrary to the
Court of Appeals' holding, Sanchez' testimony could not corroborate
Gentline's testimony because Sanchez was also an accomplice.        Jones,
III Va. at 868, 69 S.E. at 955.     Because Gentline was an accomplice
and his testimony was not corroborated, the trial court abused its
discretion in refusing Jury Instruct         A and the Court of Appeals'
judgment affirming the t     al court's refusal to grant Jury
Instruction A was error.
        Accordingly, the judgment of the Court of Appeals is reversed,
the convictions and sentences vacated, and the case is remanded for
further prosecution as the Commonwealth may see fit.
        Justice Millette took no part in the consideration of this
case.
        This order shall be published in the Virginia Reports and shall
be certified to the Court of Appeals of Virginia and to the Ci
Court of the City of Hampton.


                                 A Copy,

                                   Teste:



                                                        Clerk




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