                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia


CHRISTOPHER R. BEACH
                                          MEMORANDUM OPINION * BY
v.   Record No. 2405-98-3                 JUDGE WILLIAM H. HODGES
                                               MARCH 7, 2000
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                         Thomas H. Wood, Judge

           Elwood Earl Sanders, Jr., Appellate Defender
           (Public Defender Commission, on briefs), for
           appellant.

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


     Appellant was convicted of statutory burglary and grand

larceny.   On appeal, he argues that the trial court erred:   (1) in

not finding that this case "rose no higher than an accessory after

the fact," and (2) in denying his request for an accessory after

the fact jury instruction.   We disagree and affirm his

convictions.

                             BACKGROUND

     Appellant drove William Summerfield, Amber Minnick and Karen

Smith to the home of Virginia Smith, who is not related to Karen

Smith.   Appellant had lived in Virginia Smith's home approximately

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
ten years earlier and knew that she had guns in her home.

Appellant and Summerfield knocked on the door and appellant opened

the door.      Appellant returned to the car, and Summerfield went

inside.      Summerfield returned to the car, and they drove away.    A

short time later, appellant dropped off Summerfield a second time

at the Smith house and left.      Later, appellant saw Summerfield

walking away from Smith's house and appellant picked him up.

Summerfield sat in the backseat and showed three handguns to Karen

Smith.

                          ACCESSORY AFTER THE FACT

        At trial, the Commonwealth's theory of the case was that

appellant was a principal in the second degree.1      Appellant argued

that his participation was no more than an accessory after the

fact, and requested such an instruction.

        "[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."      Dalton v. Commonwealth,

___ Va. ___, ___, ___ S.E.2d ___, ___ (2000).

        Appellant was not charged with being an accessory after the

fact.       Therefore, the trial court did not err in not finding that


        1
       In his petition for appeal, appellant also argued that the
evidence was insufficient to prove that he was a principal in
the second degree. Appellant's petition for appeal was denied
as to this question.

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this case "rose no higher than an accessory after the fact" and in

denying appellant's request for an accessory after the fact jury

instruction.

                                                        Affirmed.




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