                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


RONALD EUGENE WALKER
                                            MEMORANDUM OPINION * BY
v.      Record No. 2826-98-4                 JUDGE CHARLES H. DUFF
                                                 MARCH 28, 2000
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Kathleen H. MacKay, Judge

             James G. Connell, III, Assistant Public
             Defender (Clinton O. Middleton, Deputy Public
             Defender, on brief), for appellant.

             Richard B. Smith, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.


        Ronald E. Walker, appellant, appeals his conviction for

robbery.    Appellant contends that the trial court erred (1) by

instructing the jury that guilt could be inferred from possession

of recently stolen goods, unexplained or falsely denied, and (2)

by refusing to instruct the jury on the lesser-included offenses

of larceny by receiving stolen property and accessory after the

fact.    For the following reasons, we find no error and affirm the

conviction.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                Facts

     David Tipton was delivering pizzas.      After making a

delivery, Tipton returned to his car and was confronted by a

person wearing a mask.   This person was armed with a knife and

demanded Tipton's car keys.   After Tipton gave the person the

keys, the person ran to Tipton's car and drove it away.        Tipton

described the person as 5'6" to 5'7" tall and as "slightly

stocky."

     Three days later, Tipton's car was involved in an accident.

Appellant was driving Tipton's car and struck a parked car.

Andrew Tirch, a reserve deputy sheriff, heard the crash and went

to the scene.   Tirch showed appellant his badge and asked him

questions.   Appellant was nervous and said he was "Jason

Jackson."    Appellant claimed that the car belonged to his aunt

who lived in Prince William County.     Tirch was immediately

suspicious because the car had a Fairfax County decal, and

suspected that the car was stolen.      Tirch told appellant to

remain at the scene until the police arrived.     Nevertheless,

appellant ran from the scene.

     When Officer Jeff King arrived at the scene, he learned

that the car had been stolen three days earlier from Tipton.

King found a steak knife in the car's back seat and a cigarette

pack bearing appellant's fingerprints.

     At trial, appellant claimed that P.J. Holland picked him up

and drove him to a party in Tipton's car.     According to

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appellant, Holland did not tell him the car was stolen until

after he had gotten into the car.    Appellant admitted that three

days later, he was driving the stolen car and had the accident.

Appellant explained that he ran from the scene because he knew

the car was stolen.    Appellant claimed he did not know that the

car was the subject of a robbery.    Appellant testified that he

is 5'8" tall.

                Granted "Recent Possession" Instruction

     Appellant claims that the trial court erred by granting

Instruction U.    That instruction stated that guilt may be

inferred from possession of recently stolen goods, unexplained

or falsely denied.    However, Instruction U was a defense

instruction submitted by defense counsel, and given to the jury

as submitted by the defense.

     Appellant cannot now complain that the trial court did as

he requested.    "'No litigant, even a defendant in a criminal

case, will be permitted to approbate and reprobate – to invite

error . . . and then to take advantage of the situation created

by his own wrong.'"    Manns v. Commonwealth, 13 Va. App. 677,

680, 414 S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwealth,

236 Va. 403, 417, 374 S.E.2d 46, 54 (1988)).    See also Doe v.

Simmers, 207 Va. 956, 960, 154 S.E.2d 146, 149 (1967).

Furthermore, even though the trial court is required to properly

instruct the jury, we do not agree that a recent possession



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instruction can never be used in a robbery case.      See Parrish v.

Commonwealth, 17 Va. App. 361, 365, 437 S.E.2d 215, 218 (1993).

             Refused "Lesser-Included Offense" Instructions

                     A.   Receiving Stolen Property

     "If there is any evidence that would support a conviction

for a lesser included offense, the trial court must, upon

request of counsel, instruct the jury as to the lesser included

offense.   An instruction, however, must be based on more than a

scintilla of evidence."     Miller v. Commonwealth, 5 Va. App. 22,

24, 359 S.E.2d 841, 842 (1987) (citations omitted).     "An

instruction is properly refused when it is unsupported by the

evidence."    Bennett v. Commonwealth, 8 Va. App. 228, 234, 380

S.E.2d 17, 21 (1989).

     Appellant requested an instruction that would have

permitted the jury to convict him of the lesser offense of

receiving stolen property.     The trial judge and the prosecutor

agreed that the evidence supported the crime of receiving stolen

property in Prince William County, but not in Fairfax County

where this case was tried.     Appellant testified that he received

stolen property at his home in Prince William County.     Appellant

said he drove the car a short distance within his Prince William

County neighborhood before he was involved in an accident and

abandoned the car.    There was no evidence that appellant

received stolen property in Fairfax County.     Because the

evidence did not support the instruction, the trial court did

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not err in refusing the instruction on the lesser crime of

receiving stolen property.

                  B.   Accessory after the Fact

     At trial, the appellant was charged only with robbery.

"[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."   Commonwealth v. Dalton,

259 Va. ___, ___, ___ S.E.2d ___, ___ (2000).     Therefore, the

trial court did not err by denying appellant's request for an

accessory after the fact jury instruction.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                                          Affirmed.




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