                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Moon, Judges Baker, Benton, Coleman,
          Willis, Elder, Bray, Fitzpatrick, Annunziata
          and Overton
Argued at Richmond, Virginia


EDWIN U. GARCIA, a/k/a
 LEONEL GIRON
                                              OPINION BY
v.          Record No. 0730-93-4        JUDGE SAM W. COLEMAN III
                                           DECEMBER 19, 1995
COMMONWEALTH OF VIRGINIA

                       UPON REHEARING EN BANC

             FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                    Benjamin N.A. Kendrick, Judge

            David Bernhard (Bernhard & Gardner, on brief),
            for appellant.

            Leah A. Darron, Assistant Attorney General
            (James S. Gilmore, III, Attorney General,
            on brief), for appellee.



     Edwin Garcia was convicted in a jury trial of first degree

murder, use of a firearm in commission of murder, and possession

of a firearm by a convicted felon.   Garcia contends that the

trial court erred by allowing a witness to testify on cross-

examination by defense counsel about a hearsay statement the

victim made to the witness.   A panel of this Court held that the

testimony was inadmissible hearsay and reversed the defendant's

convictions.    Garcia v. Commonwealth, 19 Va. App. 574, 454 S.E.2d

9 (1995).   We granted a rehearing en banc.     Upon rehearing, we

hold that the testimony was not hearsay and was admissible.

Therefore, we affirm the defendant's convictions.

     The victim was the defendant's half brother.     On the day of
the shooting, the defendant and two companions, Roberto Williams

and Fernando Reid, drove to the victim's apartment.      The

defendant and Williams exited the car, while Reid remained in the

automobile.   Soon thereafter, Reid observed what appeared to be

an argument in front of the apartment building involving the

defendant, Williams, and a third man.       A few minutes later, Reid

heard a number of shots.     The victim was found shot to death

behind the wheel of an automobile in front of the apartment

building.   At trial, witnesses gave conflicting testimony about

who shot the victim.
     The issue on appeal arises from the testimony of the

victim's cousin.    At trial, he testified that on an earlier

occasion, the defendant had attempted to run over the victim with

a car.    He testified that on another occasion, the defendant had

shot into the victim's unoccupied car.      On cross-examination,

however, the witness admitted that, as to the first incident, the

defendant had followed the victim at a slow speed in his car and

had not tried to run over him.    He also admitted that, as to the

second incident, he had never reported the shooting incident to

the police:
     Q.   But, you didn't call the police; is that correct?

                    *    *    *    *    *      *    *

     A.     I didn't call the police -- I tried to call the
            police but I didn't know the address and the car
            wasn't mine and it wasn't my problem.

                    *    *    *    *    *      *    *

     Q.     Okay.   But it was your testimony, was it not, that


                                  -2-
          you called [the victim] immediately; is that
          correct?

     A.   I called [the victim] at that time and asked him
          what he wanted to do.

     Q.   But you yourself, you never reported this to the
          police or obtained a number for the police or
          filed a complaint; is that correct?

     A.   No.

     Q.   Now, when the defendant was charged, that's when
          you came forward with this story; is that correct?

     A.   Correct.
     Q.   By that time, when some months had elapsed and you
          had found out the number for the police; is that
          correct?

     A.   I didn't call the police -- it wasn't that I
          didn't have the number, but I consulted with [the
          victim] --

     DEFENSE COUNSEL:    Objection, hearsay --

     COMMONWEALTH'S ATTORNEY: Your Honor, he cannot object
                              to his own question --

     THE COURT:      You can't object to your own question.
                     What's the answer?

     DEFENSE COUNSEL:    He was about to say what [the
                         victim] said to him.

     A.   I talked to [the victim] and he said there was a
          problem among the brothers and everything and I
          think he was afraid that he was going to kill him
          if he did anything about it.


The defendant contends that the trial court should have excluded

as inadmissible hearsay the testimony that the victim had said

"there was a problem among the brothers" and "he [victim] was

afraid that he [defendant] was going to kill him."




                                -3-
                                   I.

        Preliminarily, the Commonwealth contends that a party can

object to testimony given in response to that party's own

questions only when the testimony is nonresponsive.      Therefore,

the Commonwealth argues that because the defendant objected to

the witness's testimony on hearsay grounds, he is procedurally

barred from raising this objection on appeal.      See Rule 5A:18.

        When a party's question calls for inadmissible testimony,

that party can object to the answer only if it is nonresponsive.
 See Jackson v. Commonwealth, 19 Va. App. 557, 560-61, 453 S.E.2d

567, 569 (1995); 3 John Henry Wigmore on Evidence § 785

(Chadbourn rev. 1970); see also Whitten v. McClelland, 137 Va.

726, 741, 120 S.E. 146, 150 (1923).      However, when the question

from a party does not necessarily call for inadmissible evidence

or call for a hearsay response from a witness, a party is not

precluded from objecting to unanticipated inadmissible evidence.

 A party is precluded from objecting to an otherwise inadmissible

answer that it has elicited only when the question itself calls
                             1
for inadmissible evidence.       See Robinson v. Commonwealth, 207

Va. 66, 68, 147 S.E.2d 730, 732 (1966) (holding that the

defendant had no grounds for objecting because he elicited from
    1
      The Commonwealth cites Jackson v. Commonwealth, in support of
its contention that the defendant is procedurally barred from
objecting to the witness's testimony on hearsay grounds. Although
the Court in Jackson intimated that the party asking the question
can only object to the answer when it is nonresponsive, the Court
ruled upon the hearsay issue. Jackson, 19 Va. App. at 561, 453
S.E.2d at 569.



                                   -4-
the witness during cross-examination "testimony as to what [the

witness] was told by three persons") (emphasis added).

     In the present case, defense counsel did not attempt to

elicit from the witness "testimony as to what [he] was told"

after he reported to the victim that the defendant had shot into

the victim's car.   Id.    Defense counsel asked the witness only

about his failure to report the shooting to the police until

after the defendant was charged with the murder.    This question

did not call for a response that necessarily or likely involved

inadmissible hearsay.     Accordingly, the defendant was not barred

from objecting to the answer on hearsay grounds.
                                  II.

     Hearsay is an out-of-court statement offered to prove the

truth of the matter asserted.     Tickel v. Commonwealth, 11 Va.

App. 558, 564, 400 S.E.2d 534, 538 (1991).    A statement offered

for any other purpose is not hearsay and is, therefore, governed

by the other rules of admissibility.     See Eckhart v.
Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981).

     The clear purpose of defense counsel's cross-examination was

to suggest to the jury that because the witness had not reported

the prior incident to the police, the witness had fabricated the

story.   Thus, the witness's explanation that he had not reported

the incident because there was a problem between the brothers and

because he thought "that he [the victim] was afraid that he [the

defendant] was going to kill him" was not offered to prove the



                                  -5-
truth or falsity of the content of what the victim had said, but

rather, it was the witness's explanation as to why he had not

called the police.
            The hearsay rule does not operate to
          exclude evidence of a statement, request, or
          message offered for the mere purpose of
          explaining or throwing light on the conduct
          of the person to whom it was made. The
          evidence was admitted not for the purpose of
          showing the [truth or falsity of the
          statement] but for the purpose of showing the
          reason for the [witness's] action.


Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670

(1960).

     The defendant contends that "the witness gave a prior

complete explanation as to why he did not call the police, by

stating, `I didn't call the police--I tried to call the police

but I didn't know the address and the car wasn't mine and it

wasn't my problem.'"   After the witness gave this answer,

however, defense counsel continued to question him about his

failure to immediately report the shooting to the police.
     Q.   Now, when the defendant was charged, that's when
          you came forward with this story; is that correct?

     A.   Correct.

     Q.   By that time, when some months had elapsed and you
          had found out the number for the police; is that
          correct?

     A.   I didn't call the police -- it wasn't that I
          didn't have the number, but I consulted with [the
          victim] --

                 *     *    *    *    *    *    *

     A.   I talked to [the victim] and he said there was a
          problem among the brothers and everything and I

                                -6-
            think he was afraid that he was going to kill him
            if he did anything about it.


(Emphasis added.)   The testimony was in response to defense

counsel's question suggesting that the witness did not report the

shooting until he discovered the number for the police.   Thus,

the witness's testimony regarding the victim's statement was not

offered to prove that "there was a problem among the brothers."

Rather, it was introduced to "throw[] light on the conduct of the

[witness]" by explaining that the witness decided not to report

the shooting to the police after consulting with the victim.      See

Fuller, 201 Va. at 729, 113 S.E.2d at 670; see also 6 Wigmore on

Evidence § 1789, (Chadbourn rev. 1970).

       The defendant could have requested an instruction cautioning

the jury to consider the testimony only for the specific limited

non-hearsay purpose of explaining the witness's failure to report

the shooting to the police.    Hanson v. Commonwealth, 14 Va. App.

173, 188, 416 S.E.2d 14, 23 (1992).    However, the defendant did

not request a cautionary instruction, and "[t]he [trial] court

was not required to give such an instruction sua sponte."
Manetta v. Commonwealth, 231 Va. 123, 127 n.2, 340 S.E.2d 828,

830 n.2 (1986); see Jackson, 19 Va. App. at 561, 453 S.E.2d at

569.

       Because the evidence was not hearsay and was relevant to

explain the witness's conduct, the trial court did not err by

admitting it.   Accordingly, we affirm the defendant's

convictions.


                                 -7-
      Affirmed.




-8-
Willis, J., with whom Benton and Elder, J.J., join, dissenting.



     For the reasons set forth in the majority panel opinion, 19

Va. App. 574, 454 S.E.2d 9 (1995), I respectfully dissent.




                               -9-
