                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia


LAMONT ALLEN JOHNSON
                                         MEMORANDUM OPINION * BY
v.   Record No. 1239-00-4                 JUDGE G. STEVEN AGEE
                                              JULY 31, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Jane Marum Roush, Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on briefs), for
          appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Amy L. Marshall, Assistant Attorney General,
          on brief), for appellee.


     After a jury trial in the Circuit Court of the County of

Fairfax, Lamont Allen Johnson (Johnson) was convicted of robbery

and sentenced to serve an eight-year term of incarceration.

Johnson appeals his conviction averring the trial court erred

for refusing his proffered jury instruction regarding larceny

from the person.   For the following reasons, we affirm the

decision of the trial court.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this

appeal are recited.   In accordance with well established

principles, we consider the evidence in the light most favorable

to the Commonwealth, the prevailing party below.

                                I.

     The record discloses that on the evening of December 8,

1999, Suzanne Hudak arrived home, exited her vehicle and began

walking towards her townhouse with her handbag over her right

shoulder and a tote bag in her left hand.   As Hudak moved toward

the sidewalk she noticed Johnson approaching her.   Johnson then

asked whether "Jerome" lived nearby.   Hudak replied, "to [my]

knowledge, no one by that name lives in one of the townhouses,"

and then she continued walking towards the stairs to her home.

     Despite Hudak's reply, Johnson continued to approach her.

As Hudak was on the second or third step of her stairwell,

Johnson came up directly behind her and tried to wrench the

handbag off her shoulder.   Because the strap was around her arm,

Johnson was unable to take the bag from Hudak who had grabbed

the stair handrail.

     Johnson began to pull at the bag with greater force.     In

doing so he yanked Hudak so forcefully that the handrail she

gripped with her right hand was pulled out of the cement.

Johnson persisted and eventually pulled Hudak and the handbag

backward down the stairs, across the sidewalk and into the

parking lot.   The force propelled Hudak to fly face down into

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the pavement resulting in a sprained right wrist, a jammed left

ring finger and a severely bruised left knee.   Johnson then

succeeded in freeing the handbag from Hudak and fled on foot.

     On January 18, 2000, a Fairfax County grand jury indicted

Johnson charging he "did rob Suzanne Hudak of personal property

valued in excess of $1.00."

     At Johnson's jury trial, he presented an alibi defense

which acknowledged that a "robbery" did occur but he did not

commit the offense, as he was elsewhere at the time.   Johnson

challenged the victim's description of her assailant to police

and her identification of him as that assailant.   Johnson also

provided an alibi witness who testified that the accused was

visiting her at a distant location at the time of the robbery.

Johnson offered no evidence related to a larceny from Hudak.

     At the conclusion of the evidence, the Commonwealth and

Johnson proffered jury instructions.   The trial judge accepted

the Commonwealth's jury instructions regarding robbery.    Johnson

offered instruction "F" which allowed the jury to find him

guilty of larceny from the person if it found the Commonwealth

failed to prove the taking was accomplished by the use of a

threat or intimidation.   The proffered instruction also included

direction to the jury as to punishment upon a finding of guilty.

     The trial judge informed Johnson's counsel that the

instruction was not proper in a bifurcated trial in the

following colloquy:

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          [COUNSEL]: Yes, you're right. Number "F,"
          Your Honor, is a guilt or innocence
          instruction primarily with the option of the
          jury to find larceny from the person as
          opposed to robbery if they find no
          intimidation or violence.

          THE COURT: All right. Well, it's still
          it's all mixed up because you've got the
          sentencing information. Even if it is
          larceny from the person, it would still be
          bifurcated because that would be a felony.

          [COUNSEL]:    Yes, Your Honor.

          THE COURT: All right.     I'm going to deny
          "F." . . . .

     Johnson did not object to the denial ruling, submit a

corrected version of the instruction, or ask the trial judge to

redact the punishment portion of his proffered instruction.

After reviewing the final proposed instructions, the trial judge

asked counsel, "Are there any other instructions that anyone

wants me to consider at this stage, the guilt/innocence stage?"

Johnson's counsel responded, "The defense has no other

instructions, Your Honor."

                                 II.

     Johnson alleges on appeal that the trial judge erred in

refusing the instruction, despite its defective bifurcation

language, because larceny from the person is a lesser-included

offense of robbery.    As such, he argues an entitlement to have

the jury instructed on the lesser offense.   It is Johnson's

contention that the lesser-included offense instruction was




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vital to his defense requiring the trial judge to, sua sponte,

amend the proffered instruction and submit it to the jury.

     The Commonwealth argues Johnson is barred under Rule 5A:18

from raising the issue as he failed to do so in the trial court.

     We are cognizant that "'[a] defendant is entitled to have

the jury instructed only on those theories of the case that are

supported by the evidence.'"   Connell v. Commonwealth, 34 Va.

App. 429, 436, 542 S.E.2d 49, 52 (2001) (citation omitted); see

Stewart v. Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509,

513 (1990) (accused not entitled to lesser-included offense

instruction inconsistent with theory of defense); see also

Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103,

105 (1990) (court must instruct on "defendant's theory of

defense," if supported by the evidence).    In addition, although

the Commonwealth prevailed at trial, when we consider the

refusal of the trial judge to give a proffered instruction,

"'the appropriate standard of review requires that we view the

evidence with respect to the refused instruction in the light

most favorable to the defendant.'"     Seegers v. Commonwealth, 18

Va. App. 641, 643, 455 S.E.2d 720, 722 (1994) (citations

omitted).

     In the case at bar we find Johnson's contention not

properly preserved for our consideration and, therefore, barred

by Rule 5A:18.   "The primary function of Rule 5A:18 is to alert

the trial judge to possible error so that the judge may consider

                               - 5 -
the issue intelligently and take any corrective actions

necessary to avoid unnecessary appeals, reversals and

mistrials."    Martin v. Commonwealth, 13 Va. App. 524, 530, 414

S.E.2d 401, 404 (1992) (citing Campbell v. Commonwealth, 12 Va.

App. 47, 480, 405 S.E.2d 1, 2 (1991) (en banc)).

     In the case at bar, the defendant proffered an erroneous

instruction.   The trial judge pointed out the error whereupon

Johnson agreed that the instruction was erroneous and acquiesced

in the trial judge's denial of the instruction.    Johnson did not

complain of any error to the trial judge, did not request a

properly worded instruction similar to that which he proffered,

did not argue to the trial judge that larceny from the person is

a lesser-included offense of robbery, did not argue the evidence

was sufficient for the instruction, and did not argue the

instruction was materially vital to his defense.

     In Martin, we held that when a defendant tenders a proper

lesser-included offense instruction, he or she fully alerts the

trial judge and the Commonwealth of his position that sufficient

evidence supports granting the instruction.   This places an

affirmative duty on the trial judge to grant the instruction.

Rule 5A:18 does not further require that the defendant "object"

after the refusal to grant a proper instruction in order to

preserve the issue for appeal.    13 Va. App. at 530, 414 S.E.2d

at 404.



                                 - 6 -
     In cases where it has been held that the proffered defense

instruction was erroneously denied, the defense either put on

evidence to support the instruction or argued to the trial judge

the instruction was proper based on the evidence at trial.       See

Bryant v. Commonwealth, 216 Va. 390, 219 S.E.2d 669 (1975);

Dalton v. Commonwealth, 29 Va. App. 316, 512 S.E.2d 142 (1999);

Martin, 13 Va. App. 524, 414 S.E.2d 401.

     These circumstances are not present in this case.    The

proffered instruction was improper on its face.   The trial judge

was not on notice that larceny from the person was applicable to

Johnson's case.    Johnson failed to make any argument to that

effect.   Moreover, his alibi defense at trial contradicted the

proffered instruction.   Johnson agreed on several occasions that

Hudak was the victim of a "robbery" and never mentioned larceny

from the person.

     In no case has a challenge to the denial of a proffered

instruction by a defendant been preserved for appeal where the

instruction was inaccurate, contrary to the defendant's evidence

and argument, and where the defendant failed to object or argue

to the trial judge any basis for error and failed to accept the

court's invitation for a correct instruction.

     Johnson's citation of Whaley v. Commonwealth, 214 Va. 353,

200 S.E.2d 556 (1973), to argue that the trial judge in this

matter had an affirmative duty to sua sponte correct the

instruction is misplaced.   The decision in Whaley dealt with the

                                - 7 -
denial of fundamental due process by failure to give the basic

presumption of innocence instruction and has no nexus to the

circumstances of this case.   Whaley reaffirmed the rule that a

trial judge "is not required to amend or correct an erroneous

instruction . . . [unless] the principle of law [involved] is

materially vital to a defendant in a criminal case."   Id. at

355, 200 S.E.2d at 558.

     While an instruction on a lesser-included offense may in

some instances be materially vital to a defendant, that is not

the case here where Johnson presented an alibi defense to the

"robbery" instead of simply pleading "not guilty."   Johnson

cannot now expect to bootstrap an appellate argument not made to

the trial court and escape the imposition of the limits of Rule

5A:18.

     Johnson's assignment of error is barred by Rule 5A:18.     We

affirm the ruling of the trial court and, thereby, affirm

Johnson's conviction and sentence.

                                                         Affirmed.




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