                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia


DANNY LOPEZ MARTINEZ
                                         MEMORANDUM OPINION * BY
v.           Record No. 0176-96-1       JUDGE NELSON T. OVERTON
                                            DECEMBER 3, 1996
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      William F. Rutherford, Judge
             Jan F. Hoen (Zoby & Broccoletti, on brief),
             for appellant.

             John K. Byrum, Jr., Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     Danny Lopez Martinez was convicted by a jury of robbery in

violation of § 18.2-58 and the use of a firearm in the commission

of robbery in violation of § 18.2-53.1.    He appeals his

convictions, contending that the trial court erred in refusing to

grant his jury instruction on a claim of right defense.      Because

we find that the evidence does not support such an instruction,

we affirm.

     The parties are fully conversant with the record in the

cause, and a recitation of the facts is unnecessary to this

memorandum opinion.

     "A jury must be instructed on any theory or affirmative

defense supported by the evidence."     McCoy v. Commonwealth, 9 Va.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. 227, 229, 385 S.E.2d 628, 629 (1989); see Stevenson v.

United States, 162 U.S. 313, 322 (1896).     This Court must decide

whether the evidence when viewed in the light most favorable to

the defendant's theory required the requested instruction.

McCoy, 9 Va. App. at 229, 385 S.E.2d at 629; see Neighbors v.

Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208 (1973).

       Martinez requested two jury instructions pertaining to the

claim of right defense.    Martinez argues that if he took the

property "under a bona fide claim of right, as under a claim of
ownership or in a bona fide attempt to enforce payment of a

debt," then he lacked the necessary criminal intent and his

convictions fail.     See Pierce v. Commonwealth, 205 Va. 528, 533,

138 S.E.2d 28, 32 (1964).    The defense's theory in this case

stems solely from a statement made by Martinez at the time of the

incident and overheard by other witnesses.    Martinez asked the

alleged robbery victim where the money was that the victim owed

him.   On appeal, he now contends that this statement is

sufficient evidence so that a jury could reasonably conclude that

he was acting under a claim of right, thus absolving him from the

offense of robbery.

       We disagree.   Although Martinez's statement provided some

evidence that he believed that the victim owed him money, no

evidence was presented to prove the amount that was owed.      No

connection was made between the amount taken from the victim and

the amount of the alleged debt.    In addition to money, the



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victim's wallet and its contents were taken by Martinez when he

ran away.

     These circumstances do not provide the requisite evidence to

support a jury instruction for a claim of right defense.    Because

no evidence proved that Martinez took no more than he was owed,

the evidence did not present a factual basis from which the jury

could have determined whether Martinez had a bona fide claim to

what he took.   Cf. Butts v. Commonwealth, 145 Va. 800, 815, 133

S.E. 764, 768-69 (1926) (taking was bona fide where the defendant
demanded or took no more than what was due him).   When the

evidence proves the amount owed and the amount taken, the

question of bona fides becomes an issue for the trier of fact.

See Pierce, 205 Va. at 533-34, 138 S.E.2d at 32.   If the proposed

instruction had been given, the jury would have been required to

speculate as to the amount of the debt.   Thus, the evidence in

this case did not support a claim of right jury instruction.

     For the reasons stated, the convictions are affirmed.
                                                   Affirmed.




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