                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bray and Bumgardner
Argued at Norfolk, Virginia


GREGORY MAZYCK, S/K/A
 GREGORY A. MAZYCK
                                       MEMORANDUM OPINION * BY
v.        Record No. 2169-97-1         JUDGE RICHARD S. BRAY
                                           JULY 21, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      John E. Clarkson, Judge
          Harry Dennis Harmon, Jr., for appellant.

          Thomas D. Bagwell, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     A jury convicted Gregory A. Mazyck (defendant) for first

degree murder and conspiracy to commit robbery.   On appeal,

defendant complains that the trial court erroneously refused to

instruct the jury on the offense of accessory after the fact.    We

disagree and affirm the convictions.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to

disposition of the appeal.   "'In determining whether to instruct

the jury on a lesser-included offense, the evidence must be

viewed in the light most favorable to the accused's theory of the

case.'"   Hunt v. Commonwealth, 25 Va. App. 395, 400, 488 S.E.2d

672, 674 (1997) (citation omitted).

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     At trial, the Commonwealth established that defendant,

together with several armed co-conspirators, entered the

residence of James H. Robinson, III, intending to commit robbery.

Once inside, a struggle ensued between a perpetrator and Elijah

Thornton, III, a guest in the home.    As a result, several of the

assailants, including defendant, fired weapons, mortally wounding

Thornton.

     Defendant testified that he had been "drinking," "getting

high," and "riding around" with friends immediately prior to the

offenses.   He recalled that he "kind of doz[ed] off" and was

awakened by three companions "coming into the car," "yelling" and

"panicking."   When defendant inquired, "what was going on," one

among the group, Joseph Williams, answered, "the guy was grabbing

for the gun, and he almost took the gun from Shy [co-conspirator

Shawn Johnson], so he just fired."     Defendant did not understand

Williams' response but, "nervous and scared," "just sat there

. . . and shut up."   The men subsequently abandoned the vehicle,

and defendant later gave Timothy Hines, also a perpetrator, "cab

money home."
     At the conclusion of the evidence, defendant proposed two

jury instructions embracing the offense of accessory after the

fact, though he had not been indicted for such crime, both of

which were refused by the court.   On appeal, defendant argues

that accessory after the fact is a lesser-included offense

supported by the evidence.
               "We are bound by the principle that the



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            accused is entitled, on request, to have the
            jury instructed on a lesser included offense
            that is supported by more than a 'scintilla
            of evidence' in the record." Thus, where
            credible evidence exists that would support
            giving the jury an instruction on a
            particular theory of the case, the trial
            court's failure to give the instruction
            constitutes reversible error.


Hunt, 25 Va. App. at 399-400, 488 S.E.2d at 674 (citations

omitted).   Therefore, assuming, without deciding, that defendant

was entitled to the instruction in issue as a lesser-included

offense, or otherwise, see Code § 19.2-286; Rule 3A:17(c),
credible evidence must support such culpability. 1

      "The definition of an accessory after the fact is one of

ancient origin . . . [requiring that:]   '1.   The felony must be

completed; 2.   [Defendant] must know that the felon is guilty;

3.   [Defendant] must receive, relieve, comfort or assist him.'"

Manley v. Commonwealth, 222 Va. 642, 644-45, 283 S.E.2d 207, 208

(1981) (quoting Wren v. Commonwealth, 67 Va. (26 Gratt.) 952, 956

(1875)).    Defendant testified that he was sleeping when the men

returned to the vehicle and did not comprehend Williams' comment

that "the guy . . . almost took the gun from Shy, so he just

      1
      A panel of this Court recently concluded in Dalton v.
Commonwealth, 27 Va. App. 381, 391, 499 S.E.2d 22, 27 (1998),
that "[a]lthough the crime of being an 'accessory after the fact'
is technically not a lesser-included offense of any other crime,
. . . a criminal defendant is entitled to an instruction on this
crime, if such an instruction is warranted by the evidence, based
upon the jury's statutory power under Code § 19.2-286." Dalton
will be further considered en banc but, because we find the
instant evidence insufficient to support the instruction, the
instant decision need not await its resolution.



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fired."   Rather than make inquiry, he elected to "shut up."

Thus, defendant was involved with the principal actors following

the offenses without knowledge of the predicate felony or their

participation in it and, therefore, could not have been an

accessory after the fact.

     Accordingly, the court properly refused to instruct the jury

on the offense, and we affirm the convictions.

                                                   Affirmed.




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