                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


JERMAINE B. JONES
                                         MEMORANDUM OPINION * BY
v.           Record No. 1947-95-1         JUDGE RICHARD S. BRAY
                                             NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Verbena M. Askew, Judge
             Timothy S. Fisher (Overman, Cowardin &
             Martin, P.L.C., on brief), for appellant.

             Michael T. Judge, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



     Jermaine B. Jones (defendant) was convicted by a jury for

second degree murder and the related use of a firearm, violations

of Code §§ 18.2-32 and 18.2-53.1, respectively.     On appeal, he

complains that the trial court improperly instructed the jury

with respect to inconsistent verdicts and erroneously denied his

attendant motion for a mistrial.    Although we agree that the

disputed instruction was not correct, the error was harmless.

Accordingly, we affirm the convictions.

     The parties are fully conversant with the record, and we

recite only those facts necessary to a resolution of the issues

on appeal.

     The relevant procedural history is uncontroverted.     The

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial court first properly instructed the jury that conviction

for a violation of Code § 18.2-53.1 necessitated proof that a

firearm was used in the commission or attempted commission of

murder.    However, following closing arguments, the court further

instructed the jury, sua sponte, that "[i]f [you] determine that

the Defendant is guilty of voluntary manslaughter, you may also

find [him] guilty of use of a firearm during the commission of a

murder."   Although such inconsistent verdicts do not provide

grounds for reversal on appeal, see Wolfe v. Commonwealth, 6 Va.
App. 640, 649-50, 371 S.E.2d 314, 319-20 (1988), the trial court

has an "affirmative duty" to properly instruct a jury on a

"principle of law . . . vital to a defendant."    Johnson v.

Commonwealth, 20 Va. App. 547, 553-54, 458 S.E.2d 599, 602 (1995)

(quoting Jiminez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d

678, 681 (1991)).   Nevertheless, we find that the erroneous

instruction was harmless in this instance. 1

     "The United States Supreme Court has repeatedly stated that

harmless error analysis is appropriate in the context of improper

jury instructions."    Kil v. Commonwealth, 12 Va. App. 802, 812,

407 S.E.2d 674, 679-80 (1991).
          In Virginia, non-constitutional error is
          harmless "[w]hen it plainly appears from the
          record and the evidence given at the trial
          that the parties have had a fair trial on the
          merits and substantial justice has been
          reached." Code § 8.01-678 (emphasis added).
     1
      In addressing this issue, we assume, without deciding, that
defendant's mistrial motion was timely. See Cheng v.
Commonwealth, 240 Va. 26, 393 S.E.2d 599 (1990).




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           "[A] fair trial on the merits and
          substantial justice" are not achieved if an
          error at trial has affected the verdict.
          Consequently, under Code § 8.01-678, a
          criminal conviction must be reversed unless
          "it plainly appears from the record and the
          evidence given at the trial that" the error
          did not affect the verdict. An error does
          not affect a verdict if a reviewing court can
          conclude, without usurping the jury's
          fact-finding function, that, had the error
          not occurred, the verdict would have been the
          same.


Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc).    Whether an error at trial has affected the

verdict necessarily depends on the circumstances of each case.

Id. at 1009, 407 S.E.2d at 913.

     Here, notwithstanding the erroneous instruction, the jury

convicted defendant of a requisite predicate felony, second

degree murder, thereby avoiding an inconsistent verdict.    We,

therefore, can conclude, without usurping the jury's fact-finding

function, that the verdict would have been unchanged had the

error not occurred.     See Smoot v. Commonwealth, 18 Va. App. 562,

566-68, 445 S.E.2d 688, 691 (1994) (although jury instruction

omitted essential element of crime, error harmless because

evidence of such circumstance was uncontradicted in the record);
cf. LeVasseur v. Commonwealth, 225 Va. 564, 592 n.3, 304 S.E.2d

644, 659 n.3 (1983), cert. denied, 464 U.S. 1063 (1984) (failure

to instruct jury on second degree murder harmless because

conviction of capital murder manifested a rejection of second

degree murder).




                                 - 3 -
     Defendant next contends that the action and attendant

remarks of the trial court suggested to the jury that defense

counsel had presented either an untruthful or erroneous argument,

inviting prejudice to defendant's cause.   However, when defendant

requested a mistrial, he addressed only the inconsistent verdict

implications of the trial court's error, without mention of any

incidental prejudice.   Defendant first raised this issue to the

court in additional argument several months after trial.   Thus,

defendant did not afford the trial judge an opportunity to remedy

any error in a timely fashion.    Because Rule 5A:18 precludes our

review of issues not properly raised before the trial court, save

for good cause or to attain the ends of justice, 2 this argument

was not preserved for appellate review.    See, e.g., Deal v.

Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).

     Accordingly, we affirm the convictions.

                                               Affirmed.




     2
      Defendant has not argued either the good cause or the ends
of justice exceptions to Rule 5A:18, and we do not find either
applicable in this instance.



                                 - 4 -
