Dalton v. Commonwealth

Tuesday 7th

July, 1998.

Paul Michael Dalton, Jr., Appellant,

against Record No. 3134-96-3
Circuit Court No. CR96000298-00

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On June 2, 1998 came the appellee, by counsel, and filed a

petition praying that the Court set aside the judgment rendered herein

on May 19, 1998, and grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc

is granted, the mandate entered herein on May 19, 1998 is stayed

pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35.

It is further ordered that the appellee shall file with the clerk of

this Court ten additional copies of the appendix previously filed in

this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk
 COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole
Argued by teleconference

PAUL MICHAEL DALTON, JR.
OPINION BY
v. Record No. 3134-96-3 JUDGE LARRY G. ELDER
MAY 19, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
Charles J. Strauss (H. Victor Millner, Jr.,
P.C., on brief), for appellant.

Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Paul Michael Dalton, Jr. (appellant) appeals his conviction

of first degree murder. He contends the trial court erred when

it refused to instruct the jury on the crime of accessory after

the fact to murder. For the reasons that follow, we reverse and

remand.

I.

FACTS

Appellant was charged with three crimes: (1) murder "in the

commission of or attempt to commit robbery," (2) murder, and

(3) "use [of] a shotgun in committing or attempting to commit

murder or robbery." None of the indictments against appellant

expressly charged him with being an accessory after the fact to

any of these crimes.

The evidence at appellant's trial proved that, on
December 17, 1995, the body of Clark Aubrey Adkins (victim) was

found buried in a shallow grave in a wooded area about two-tenths

of a mile from the nearest state road. The victim had been

killed by a gunshot wound to his right upper chest. The victim

also had been shot a second time in his left side "just above the

belt" after his heart had stopped beating. The Commonwealth

produced no "scientific evidence," such as DNA, blood, or

fingerprints, that linked appellant to the crime.
Three witnesses, Ronald Cassady, Matthew Cassady, and Jimmy

Cook, testified that appellant confessed to killing the victim

during the week of December 12. Ronald Cassady testified that

appellant told him that "when [the victim] come down the road, he

was laying in the road and jumped up when [the victim] stopped

and shot him." Matthew Cassady testified that appellant told him

"he met . . . [the victim] on his grandma's road, and somehow he

got in the car or something and he shot him." Matthew Cassady

also testified that appellant said he killed the victim "because

[the victim] raped his sister, Mary Dalton." Jimmy Cook

testified that, after appellant drafted a note confessing to the

murder, he explained his reasons for doing so. According to

Cook, appellant "said he wanted to write a note . . . because he

said he done it all by himself, and he didn't want to get his

sister or Joseph [Smith] [appellant's sister's boyfriend], to get

neither one of them blamed for something they didn't do."

The Commonwealth also introduced into evidence a note

-3-
written and signed by appellant in which appellant stated that he

"did in fact kill [the victim] . . . and Mary and Jos[e]ph did

not have inthing [sic] to do with it."

At trial, appellant denied shooting the victim. Appellant

testified that, on December 12, he and Joseph Smith were sitting

in the woods watching his sister, Mary Dalton, as she attempted

to buy marijuana from the victim while in his car. Appellant

testified that after his sister exited the victim's car, he saw

Smith approach the victim and shoot him twice. According to

appellant, Smith "shot [the victim] one time through the

passenger side door, and he reloaded, and he walked around and he

opened the driver's side door and shot him again." After the

shooting, appellant helped Smith place the victim's body in the

trunk and accompanied Smith as he drove the victim's car to a

remote location in the woods. Appellant testified that, at some

point, Smith took "between twelve hundred and fifteen hundred

dollars" and some "pot" from the victim's body and distributed it

among himself, appellant, and appellant's sister. "A couple of

days later," appellant helped Smith carry the victim's body from

the trunk of his car to a location in the woods where Smith

buried it. Appellant testified that he wrote his confession note

"'cause [he] didn't want [his sister] to go to jail."
At the conclusion of the evidence, appellant requested a

jury instruction on the crime of being an "accessory after the

fact." When the trial court refused to give the instruction,

-4-
appellant asked the trial court to note his exception to this

ruling. Appellant argued that an instruction on accessory after

the fact was warranted "based on the evidence in this case." The

trial court stated for the record that it refused appellant's

request for an instruction on accessory after the fact "because

[it did] not think that accessory after the fact is a lesser

included offense to any of the charges."

The jury convicted appellant of first degree murder but

acquitted him of the firearm charge. The trial court

subsequently dismissed the indictment charging appellant with

murder in the commission of or attempt to commit robbery.
II.

JURY INSTRUCTION

Appellant contends the trial court erred when it refused to

instruct the jury on the crime of being an "accessory after the

fact." He argues (1) that Rule 3A:17(c) of the Rules of the

Supreme Court of Virginia entitled him to an instruction on

accessory after the fact if more than a scintilla of evidence

supported this theory of the case, and (2) that the evidence was

sufficient to warrant such an instruction. We agree that the

jury should have been instructed that this disposition of the

case was an option when it determined its verdict.

As a preliminary matter, we disagree with the Commonwealth's

argument that appellant is precluded by Rule 5A:18 from relying

on Rule 3A:17(c) to support his argument on appeal. We have

-5-
previously held that, in light of the relaxed procedural rule for

noting exceptions under Code § 8.01-384, the tendering of a jury

instruction is all that is required to place the trial court on

notice that the party requesting the instruction is legally

entitled to it and that sufficient evidence supports granting the

instruction. See Martin v. Commonwealth, 13 Va. App. 524,

529-30, 414 S.E.2d 401, 404-05 (1992) (en banc). By requesting

an instruction on accessory after the fact, appellant fully

alerted the trial court that the jury should be permitted to

convict him of this offense under Rule 3A:17(c) and Code

§ 19.2-286. Cf. id. at 530, 414 S.E.2d at 404 (stating that

tendered instruction had the effect of notifying trial court that

simple assault is a lesser-included offense of attempted capital

murder). The record indicates that after the trial court refused

to give appellant's requested accessory-after-the-fact

instruction, appellant expressly asked the trial court to note

his exception to this ruling and argued that an instruction on

accessory after the fact was proper "based on the evidence in

this case." We hold that appellant preserved for appeal his

objection to the trial court's refusal to grant his tendered jury

instruction based on Rule 3A:17(c).

This case presents an issue of first impression in Virginia:

whether a criminal defendant who has not been expressly charged

with the crime of being an "accessory after the fact" has a right

to a jury instruction on the offense of being an accessory after

-6-
the fact to the crime of which he or she was charged.

"A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,

503, 290 S.E.2d 856, 858 (1982)).

Neither the Code nor the Rules of the Supreme Court of

Virginia set forth the jury instructions that the trial court

must give upon the request of a defendant at the conclusion of

the evidence in a criminal case. However, it is well established

as a matter of common law that "[i]t belongs to the [trial] court

to instruct the jury as to the law, whenever they require

instruction, or either of the parties request it to be given."
Thornton v. Commonwealth, 65 Va. (24 Gratt.) 228, 230 (1874). It

is equally well established that "[a] defendant is entitled to

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

are supported by the evidence," and a trial court errs when it

refuses such an instruction that is supported by "more than a

scintilla" of evidence. Frye v. Commonwealth, 231 Va. 370, 388,

345 S.E.2d 267, 280 (1986); see also Baylor v. Hoover, 123 Va.

659, 660-61, 97 S.E. 309, 310 (1918); Bowles v. Commonwealth, 103

Va. 816, 830-81, 48 S.E. 527, 532 (1904).

The scope of the jury instructions that the trial court is

required to give upon request of a party is linked to the range

-7-
of dispositions of a particular case that are available to the

jury as a matter of right. For example, "at common law the jury

was permitted to find the defendant guilty of any lesser offense

necessarily included in the offense charged." Beck v. Alabama,

447 U.S. 625, 633, 100 S. Ct. 2382, 2387, 65 L.Ed.2d 392 (1980);

see also Keeble v. United States, 412 U.S. 205, 208, 93 S. Ct.

1993, 1995, 36 L.Ed.2d 844 (1973); Hardy v. Commonwealth, 58 Va.

(17 Gratt.) 616, 618-20 (1867) (stating that under Virginia

common law, "a party might be convicted of any offence

substantially charged in the indictment, provided it was of the

same grade [either felony or misdemeanor] with the principal or

total offence charged"). Thus, as a matter of common law, "[i]t

is reversible error for the trial court to refuse to instruct the

jury on the lesser offenses charged in the indictment if there is

any evidence in the record tending to prove such lesser

offenses." Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d

906, 908 (1947) (citations omitted); see also Barrett v.
Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986);

McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 292-93

(1975); Porterfield v. Commonwealth, 91 Va. 801, 803, 22 S.E.

352, 353 (1895); Miller v. Commonwealth, 5 Va. App. 22, 24, 359

S.E.2d 841, 842 (1987); 23A C.J.S. Criminal Law § 1357 (1989)

(stating that "[t]he right to a jury instruction on a lesser

included offense . . . is purely a matter of common law").

Conversely, we have stated as a general proposition that "an

-8-
accused on trial for one offense is not entitled to have the jury

instructed on an offense which is not included as a lesser

offense of the one charged." Simms v. Commonwealth, 2 Va. App.

614, 616, 346 S.E.2d 734, 735 (1986); see also Crump v.

Commonwealth, 13 Va. App. 286, 290, 411 S.E.2d 238, 241 (1991);

Taylor v. Commonwealth, 11 Va. App. 649, 651, 400 S.E.2d 794, 795

(1991).

Prior to the amendment of Code § 19.2-286 in 1960, 1 a

defendant not charged with being an accessory after the fact was

not entitled to a jury instruction on this offense because the

crime of being an accessory after the fact is not a

lesser-included offense of other crimes. "Whether one offense is

a lesser included offense of the other depends upon whether the

elements of the greater offense necessarily include all elements

of the lesser." Fontaine v. Commonwealth, 25 Va. App. 156, 164,

487 S.E.2d 241, 245 (1997). "A lesser included offense is an
1
The statute that is now known as Code § 19.2-286 was enacted
by the General Assembly in 1848, see 1847-48 Va. Acts ch. 120,
and has appeared in every subsequent version of the Virginia
Code. See Code tit. 55, ch. 208, § 32 (1849); Code tit. 55, ch.
208, § 31 (1860); Code ch. 202, § 31 (1873); Code § 4044 (1887);
Code § 4044 (1904); Code § 4922 (1919); Code § 19-227 (1950);
Code § 19.1-254 (repl. vol. 1960); Code § 19.2-286 (repl. vol.
1975); Code § 19.2-286 (repl. vol. 1995). Since its enactment,
the text of this statute has been amended only twice -- in 1960
and 1975. See 1960 Va. Acts ch. 366; 1975 Va. Acts ch. 495. In
1960, the General Assembly extended the reach of this statute,
which was then codified at Code § 19.1-254, to include the crime
"of being an accessory after the fact." Code § 19.2-254 (repl.
vol. 1960); see 1960 Va. Acts ch. 366. In 1975, the General
Assembly modified this particular language to "of being an
accessory thereto." Code § 19.2-286 (repl. vol. 1975); see 1975
Va. Acts ch. 495.

-9-
offense which is composed entirely of elements that are also

elements of the greater offense." Kauffmann v. Commonwealth, 8

Va. App. 400, 409, 382 S.E.2d 279, 283 (1989). "An offense is

not a lesser included offense of another if each offense contains

an element that the other does not." Walker v. Commonwealth, 14

Va. App. 203, 206, 415 S.E.2d 446, 448 (1992). The elements of

being an accessory after the fact are not wholly contained in any

other offense. In order to convict a defendant of being an

accessory after the fact, the Commonwealth must prove three

elements: that the defendant (1) "receive[d], relieve[d],

comfort[ed] or assist[ed]" a felon (2) after knowing that the

felon was guilty of committing a completed felony and (3) that

the felony was, in fact, completed. See Manley v. Commonwealth,

222 Va. 642, 644, 283 S.E.2d 207, 208 (1981). The second of

these elements -- that the defendant knew that he or she was

assisting a felon guilty of a completed felony -- is unique to

the crime of accessory after the fact and is not included in any
2
other offense. Cf. Thornton, 65 Va. (24 Gratt.) at 232 (stating
2
In Goodson v. Commonwealth, a panel of this Court indicated
that the crime of being an accessory after the fact might be a
lesser-included offense of attempted murder and robbery. See 22
Va. App. 61, 78-79, 467 S.E.2d 848, 857 (1996). However, it is
clear from the context of this statement in Goodson that it was
pure dictum. The Court was not formally addressing the issue of
whether accessory after the fact was a lesser-included offense of
attempted murder and robbery, and the opinion is devoid of any
analysis comparing the elements of these three crimes. Instead,
the Goodson court was analyzing whether the record contained more
than a scintilla of evidence to support an
accessory-after-the-fact instruction. Thus, Goodson does not
provide authoritative support for the proposition that the crime
of being an accessory after the fact is a lesser-included offense

-10-
that "[a]t common law an accessory could not be convicted on an

indictment against him as a principal felon").

However, the General Assembly has added to the offenses for

which an accused felon may request a jury instruction by

empowering juries to convict accused felons of both "attempt" and

being an "accessory," 3 even though neither of these crimes was

expressly charged in the felony indictment. Code § 19.2-286

states:
On an indictment for felony the jury may find
the accused not guilty of the felony but
guilty of an attempt to commit such felony,
or of being an accessory thereto; and a
general verdict of not guilty, upon such
indictment, shall be a bar to a subsequent
prosecution for an attempt to commit such
felony, or of being an accessory thereto.

This Code provision has been incorporated into the rules

regulating jury verdicts in criminal cases. See Rule 3A:17(c)

(stating that "[w]hen the offense charged is a felony, the

accused may be found not guilty thereof, but guilty of being an

accessory after the fact to that felony"). Applying this

statute, the Virginia Supreme Court has stated that a felony

indictment "embraces" as a "lesser offense" the crimes listed in

Code § 19.2-286. See Willoughby v. Smyth, 194 Va. 267, 271, 72

of either attempted murder or robbery.
3
This Code section does not purport to distinguish between
accessories before the fact and accessories after the fact. See
Code §§ 18.2-18, -19, and -21. Because Code § 19.2-286
recognizes no distinction, we must interpret the provision as
applicable to both forms of accessory liability.

-11-
S.E.2d 636, 638-39 (1952) (applying Code § 19-227, which was an

earlier version of Code § 19.2-286). Although the crime of being

an "accessory after the fact" is technically not a

lesser-included offense of any other crime, we hold that 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. Thus, the

trial court erred when it ruled that appellant was not entitled

to an instruction on the crime of being an accessory after the

fact merely because it was not "a lesser included offense to any

of the charges."
Turning to the facts of this case, we hold that the evidence

was sufficient to mandate a jury instruction on the offense of

being an accessory after the fact. When determining whether

sufficient evidence warranted a particular instruction, we view

the evidence in the light most favorable to the party requesting

the instruction. See Foster v. Commonwealth, 13 Va. App. 380,

383, 412 S.E.2d 198, 200 (1991). Appellant's testimony provided

ample support for his theory that he was only an accessory after

the fact to the crimes committed against the victim. Appellant

testified that Joseph Smith, his sister's boyfriend, shot the

victim in his car while appellant was sitting nearby in the

woods. Appellant testified that after the shooting, he helped

Smith place the victim's body in the trunk and accompanied Smith

as he drove the victim's car to a remote location in the woods.

-12-
Appellant testified that, at some point, Smith took money and

"pot" from the victim's body and distributed it between himself,

appellant, and appellant's sister. Appellant testified that a

few days later he helped Smith carry the victim's body from the

trunk of the car to a location in the woods where Smith buried

it. Based on this evidence, a jury could have concluded that

appellant was only guilty of being an accessory after the fact.

For the foregoing reasons, we reverse the conviction of

first degree murder and remand for further proceedings consistent

with this opinion.

Reversed and remanded.

-13-
Cole, J., dissenting.

I dissent because the trial judge correctly refused to grant

an instruction based upon the appellant being an accessory after

the fact. The instruction was neither grounded upon the charged

offense of first degree murder, a lesser-included offense to

first degree murder, nor upon any offense substantially charged

as provided in Rule 3A:17(c).

The facts necessary to determine the issue on appeal are not

in dispute. Aubrey Adkins was murdered. Appellant was indicted

and convicted of first degree murder. 4 Although the Commonwealth

presented sufficient and credible evidence to the contrary,

appellant testified that he did not participate in the killing

and had no prior knowledge of it. He admitted being present at

the scene at the time of the murder and being aware of its

commission. However, he denied that he planned or assisted in

the crime in any way prior to or during its commission. He

admitted participation after the murder in disposing of the body

and sharing in money and marijuana taken from the deceased after

the murder.

On appeal, appellant asserts that an instruction on an

accessory after the fact to first degree murder was vital to his

defense. He claims that a person accused of a crime is entitled

to instructions which present the accused's defense from his or

4
Appellant was indicted on other charges not involved in this
appeal.

-14-
her point of view. He admits that from the evidence presented,

the jury could have found him guilty as charged in the

indictment, but the only other option the trial judge gave the

jury was to acquit him. He acknowledges that the jury was not

likely to do this under the evidence. The jury was not permitted

to consider whether he was guilty of being an accessory after the

fact.

Citing Taylor v. Commonwealth, 11 Va. App. 649, 651, 400

S.E.2d 794, 795 (1991), the Commonwealth defends upon the premise

that an accused is not entitled to have the jury instructed on an

offense which is not the charged offense, or a lesser-included

offense of the charged offense. It contends that an accessory

after the fact is not a lesser-included offense of first degree

murder; therefore, appellant was not entitled to the instruction

as a matter of law. In its opinion, the majority finds that an

accessory after the fact is not a lesser-included offense to any

crime. However, it holds that appellant was entitled to an

instruction on the offense of being an accessory after the fact.
The trial court prepared seventeen (17) instructions fully

and fairly covering all aspects of the first degree murder

charge. The trial judge asked counsel if there were any

objections to these instructions, and none were made. The

instruction requested by appellant is not a part of the record.

Moreover, the record does not show that the instruction was

tendered to the court or even existed. The entire record

-15-
pertaining to the instruction follows:
[Defense counsel]: [N]ote our objection to
the court's ruling that they will not grant
us an instruction on accessory after the
fact. I would submit that based on the
evidence in this case, that would be proper
to instruct the jury on that, and therefore
we would note our exception to the Court's
ruling that they will not grant us an
instruction on being an accessory after the
fact.

[Trial Judge]: [Y]ou have asked that an
instruction be given on the defendant as an
accessory after the fact, and I have refused
to give that instruction. My ruling was
because I do not think that is a lesser
included offense to any of the charges.

The majority holds that this ruling was erroneous and the

failure to give an instruction on "accessory after the fact"

constitutes reversible error. The majority reasons that the

General Assembly when enacting Code § 19.2-286 and the Supreme

Court when adopting Rule 3A:17(c) empowered juries to convict an

accused charged with a felony as "an accessory after the fact to

that felony" where the evidence supports such an instruction,

even though the accused was not indicted upon the charge or such

offense was not substantially charged or necessarily included in

the charged offense against the accused. The majority concludes

that the trial court was required to give an instruction based

upon the evidence that appellant committed certain illegal acts

after the crime charged was completed. The majority decision

would result in the requirement that a trial court give an

accessory after the fact instruction in every case, despite the

-16-
absence of an indictment or summons for the offense. The

Commonwealth did not elect to prosecute appellant as an accessory

after the fact but chose to prosecute on other offenses. The

Commonwealth would, in many cases, have no notice that a

defendant would attempt to divert the attention of the jury from

deciding the guilt or innocence on the charged offense or one

substantially charged or necessarily included in the charge

against the accused and require it to consider an independent

offense not charged.
Because the majority bases its decision upon the authority

of Code § 19.2-286 and Rule 3A:17(c), both of which deal with

jury verdicts, I shall consider each of them. But, before doing

so, I will review the other required procedures that must have

occurred before the jury is instructed.

Under the Due Process Clause of the United States

Constitution, a criminal defendant must be given clear

notification of the offense charged. The Virginia Constitution

provides "that in criminal prosecutions a man hath a right to

demand the cause and nature of his accusation." Va. Const. art.

I, § 8.

To carry out these constitutional mandates, the General

Assembly has by statute set forth certain procedures. It has

provided for grand juries to consider bills of indictment, see

Code § 19.2-191; it has commanded the use of indictments,

presentments, and informations, see Code § 19.2-216; and it has

-17-
made provision for preliminary hearings, see Code § 19.2-218. It

has directed that an "indictment or information shall be a plain,

concise, and definite written statement, (1) naming the accused,

(2) describing the offense charged," (3) locating where the

offense was committed, and (4) reciting the date of the offense.

Code § 19.2-220. Rules of Court require citation of the statute

or ordinance that defines the offense. See Rule 3A:6. The

General Assembly has provided for an arraignment, which consists

of reading to the accused the charge on which he or she will be

tried and calling on the accused to plead thereto. See Code

§ 19.2-254. An accused may plead not guilty, guilty or nolo

contendere. See id. The court may refuse to accept a plea of

guilty to any lesser offense included in the charge upon which

the accused is arraigned. See id.
In any trial upon an indictment charging
homicide, the jury or the court may find the
accused not guilty of the specific offense
charged in the indictment, but guilty of any
degree of homicide supported by the evidence
for which a lesser punishment is provided by
law.

Code § 19.2-266.1.

Rule 3A:9, in part, provides:
(a) Pleadings and Motions - Pleadings in a
criminal proceeding shall be the indictment,
information, warrant or summons on which the
accused is to be tried and the plea of not
guilty, guilty or nolo contendere. . . .

(b) The Motions raising Defenses and
Objections - (1) . . . Defenses and
objections based on defects in the
institution of the prosecution or in the
written charge upon which the accused is to

-18-
 be tried, other than that it fails to show
jurisdiction . . . the motion shall include
all such defenses and objections then
available to the accused. Failure to present
any such defense or objection as herein
provided shall constitute a waiver thereof
. . . .

It is not until the entire procedure established for the trial

has been completed that the subject of jury verdicts is

considered.

Code § 19.2-286
At common law, "[i]n an indictment or information for an

attempt to commit a crime, the accused's intent and the act done

toward the commission of the crime must be alleged . . . ." 2

Charles E. Torcia, Wharton's Criminal Procedure § 261, at 121

(13th ed. 1990). The problem surrounding the accusation stage of

"attempts" reached the Virginia Supreme Court in Cates v.

Commonwealth, 111 Va. 837, 69 S.E. 520 (1910). The Court held:
An intention to commit a felony and the
doing of some act towards its commission
without actually committing it, an attempt
that being the offense of which the accused
was found guilty on the former trial, it was
necessarily included in the charge of rape,
otherwise there could be no conviction for
that offense on the indictment for rape, for
no one can be convicted of an offense not
embraced or included in the charge against
him.
The attempt being included in or a part
of, the offense charged, a conviction of the
attempt would be an acquittal of the
principal or major offense of rape.

Id. at 841, 69 S.E. at 521 (citations omitted) (emphasis added).

Creating no new authority, but restating what had been the

-19-
law for years, Code § 4922 appeared in the 1942 Code as follows:
On an indictment for felony the jury may find
the accused not guilty of the felony, but
guilty of an attempt to commit such felony
. . . .

Code § 4922 was followed by Code § 19.1-254. In 1960, the

General Assembly amended Code § 19.1-254 to read in pertinent

part as follows:
On an indictment for felony the jury may find
the accused not guilty of the felony but
guilty of an attempt to commit such felony,
or of being an accessory after the fact
. . . .
(Emphasis added.).

Effective October 1, 1975, the General Assembly repealed

Title 19.1 and enacted it as Title 19.2. Code § 19.1-254 was

re-written as § 19.2-286. Only one change was made. The

language "accessory after the fact" was replaced with "accessory

thereto." This language remains to date. Accessory after the

fact is a misnomer because an accessory after the fact is not an

accessory at all. To prove someone was an accessory after the

fact, the government must prove that the person became involved

"after the commission of a felony." Thus, the crime of being an

accessory after the fact is an independent crime, see Code
§ 18.2-19, and is codified under a separate statute.
An accessory after the fact is not a
party to the principal crime. By definition,
such an accessory can be guilty of a crime
only after the principal crime is an
accomplished fact. It follows that an
accessory after the fact must be charged as
such, and not as a party to the principal
crime.

-20-
2 Torcia, Wharton's Criminal Procedure, supra, § 260.

The Code of Virginia does not specifically define an

accessory after the fact. Hence, we resort to the common law for

a definition. Virginia law classifies an accessory after the

fact as a Class 1 misdemeanor. See Code § 18.2-19. The

punishment is confinement in jail for not more than twelve months

and a fine of not more than $2,500, either or both. See id.

Case law has defined an accessory after the fact as a person

who, knowing a felony to have been committed by another,

receives, relieves, comforts or assists the felon. See Manley v.

Commonwealth, 222 Va. 642, 644-45, 283 S.E.2d 207, 208 (1981).

"To constitute one an accessory after the fact, three things are

requisite: (1) The felony must be completed; (2) He must know

that the felon is guilty; (3) He must receive, relieve, comfort

or assist him." Wren v. Commonwealth, 67 Va. (26 Gratt.) 952,

956 (1875).

"An accessory after the fact has not contributed to the

commission of a crime; his criminality is found in his post-crime

assistance which is likely to impede the prosecution of the

perpetrator." Roger D. Groot, Criminal Offenses and Defenses in
Virginia, at 354 (3d ed. 1994).

By removing the phrase "accessory after the fact" from Code

§ 19.1-254, the General Assembly evinced its intent to eliminate

accessories after the fact from the purview of the statute.

Because an accessory after the fact is not a party to the

-21-
principal crime, has not planned or assisted in it, and is a

separate and independent crime that must be charged as such, it

does not come within the statutory term "accessory thereto."

Therefore, the words "accessory thereto" could not logically

refer to accessories after the fact.

This interpretation is consistent with Code § 18.2-18, which

provides "[i]n the case of every felony, every principal in the

second degree and every accessory before the fact may be

indicted, tried, convicted and punished in all respects as if a

principal in the first degree." Accessory after the fact is not

placed in this classification.
Under the annotations to Code § 18.2-18, crimes are

classified as follows:
II. Who are Principals and Accessories.
A. Principal in First Degree
B. Principal in Second Degree
C. Accessory Before the Fact
D. Capital Murder

It is significant that an accessory after the fact is not

included in the classification of "principals" and "accessories";

because it is a misdemeanor and an independent crime in itself,

logic dictates that it be excluded from the classification.

At common law, an accessory after the fact was treated as a

party to the underlying felony. However, the clear trend today

is that the accessory after the fact is no longer treated as a

party to the crime. This kind of accessory is now recognized as

an "'obstructor' of justice, the author of a separate and

-22-
independent offense." See 1 Charles E. Torcia, Wharton's

Criminal Law § 35, at 535 (15th Ed. 1993) (footnote omitted).

From the above authority, I conclude that Code § 19.2-286

has no application to accessories after the fact and the

terminology "accessory thereto" refers only to principals in the

first degree, principals in the second degree and accessories

before the fact. Therefore, appellant's argument receives no

additional support from this statute.
Rule 3A:17(c)

Part Three A of the Rules of the Supreme Court was adopted

June 15, 1971, and made effective January 1, 1972. Former Rule

3A:24(c) substantially tracked Code § 19.1-254 (now Code

§ 19.2-286), which at that time contained the phrase "accessory

after the fact" and not "accessory thereto." Former Rule

3A:24(c), which was changed to Rule 3A:17(c), provided, in

pertinent part:
(c) Conviction of Lesser Offense - The
accused may be found not guilty of an offense
charged but guilty of any offense, or of an
attempt to commit any offense, that is
substantially charged or necessarily included
in the charge against the accused. When the
offense charged is a felony, the accused may
be found not guilty thereof, but guilty of
being an accessory after the fact to that
felony.

In 1975, when the language of Code § 19.2-286 was changed

from "accessory after the fact" to "accessory thereto," the rule

was not changed to conform to the statute and continued to

contain the language "accessory after the fact." However, Rule

-23-
3A:17(c) contained the following new language not contained in

the statute: "that is substantially charged or necessarily

included in the charge against the accused." (Emphasis added.).

The rules are "intended to provide for the just

determination of criminal proceedings. They shall be interpreted

so as to promote uniformity and simplicity in procedure, fairness

in administration, and the elimination of unjustifiable expense

and delay." Rule 3A:2. "In the case of any variance between a

rule and an enactment of the General Assembly such variance shall

be construed so as to give effect to such enactment." Code
§ 8.01-3(D). See Soliman v. Soliman, 12 Va. App. 234, 240, 402

S.E.2d 922, 926 (1991). "If the several provisions of a statute

suggest a potential for conflict or inconsistency, we construe

those provisions so as to reconcile them and to give full effect

to the expressed legislative intent." Mejia v. Commonwealth, 23

Va. App. 173, 176-77, 474 S.E.2d 866, 868 (1996).

Rule 3A:17 is entitled Jury Verdicts and 3A:17(c) is

sub-headed, "Conviction of Lesser Offense." These headings give

some indication of the rule-maker's intent and the subject matter

of the rule. The first sentence is a restatement of the law

contained in the case law for many years: "The accused may be

found not guilty of an offense charged but guilty of any offense

. . . that is substantially charged or necessarily included in

the charge against the accused." The requirement that the

offense be "substantially charged" or "included in the charge"

-24-
indicates that an accusation must have been made against the

accused sufficient to meet constitutional requirements; namely,

that an indictment, presentment, information, warrant or summons

has been issued in accordance with law advising the accused of

the charge against him and that the grand jury has found probable

cause. The rule denotes that the accused may be found not guilty

of any offense charged. However, the accused may be found guilty

of any charge that is substantially charged or necessarily

included in the charge.
After this rule went into effect in 1972, the Supreme Court

has not addressed it specifically, but has decided cases using

the terminology of Rule 3A:17(c), namely, "substantially charged

and necessarily included in the charge against the accused." See

Spear v. Commonwealth, 221 Va. 450, 454-57, 270 S.E.2d 737,

741-42 (1980) (holding a defendant has a right to demand the

complaint against him; the court erred in granting any

instruction which permitted the jury to find him guilty of any

offense other than the charged offense or a lesser-included

offense); Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d
506, 508 (1979) (holding that the court has the duty to instruct

the jury on the principles of law applicable to the pleadings and

the evidence); Crawford v. Commonwealth, 217 Va. 595, 599, 231

S.E.2d 309, 311-12 (1977) (holding that the indictment must give

the accused notice of the nature and character of the offense

charged so that he can make his defense and that the indictment

-25-
was substantially in the form suggested by the Rules of Court).

See also Edenton v. Commonwealth, 227 Va. 413, 417-18, 316 S.E.2d

736, 738 (1984) (reversing misdemeanor conviction for driving

without valid license, holding that the misdemeanor of which

defendant was convicted was not substantially charged in

indictment and was not lesser-included offense of driving after

being declared habitual offender).

"[A] defendant is not entitled to an instruction on an

offense for which he is not specifically charged, unless it is a

necessarily included lesser offense thereof." Simms v.

Commonwealth, 2 Va. App. 614, 617, 345 S.E.2d 734, 735 (1986).

See also Crump v. Commonwealth, 13 Va. App. 286, 290, 411 S.E.2d

238, 241 (1991); Taylor v. Commonwealth, 11 Va. App. 649, 651,

400 S.E.2d 794, 795 (1991).
A lesser included offense is an offense which
is composed entirely of elements that are
also elements of the greater offense. Thus,
in order for one crime to be a lesser
included offense of another crime, every
commission of the greater offense must also
be a commission of the lesser offense. . . .
As an exception to the American rule barring
merger of criminal offenses, a criminal
defendant is entitled to jury instructions
for all lesser included offenses supported by
the evidence.

Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279,

283 (1989) (citing Miller v. Commonwealth, 5 Va. App. 22, 24, 359

S.E.2d 841, 842 (1987) (other citations omitted)). See also
Crump, 13 Va. App. at 290, 411 S.E.2d at 241; Darnell v.

Commonwealth, 12 Va. App. 948, 954, 408 S.E.2d 540, 543 (1991).

-26-
 The determination of what offenses are
necessarily included lesser offenses of the
crime charged is based on the fundamental
nature of the offenses involved, not on the
particular facts of a specific case or the
language of a given indictment. The only
offenses which are lesser included are those
which are "in their nature constituent parts
of the major offense." Even if one offense
is committed in almost all cases of the
commission of another offense, it is not a
necessarily included lesser offense of the
other one. Neither the facts charged in the
indictment nor those proved at trial
determine whether an offense is a necessarily
included offense; the determination, instead,
is made by examining the elements of the
crimes that must be proved in order to
sustain a conviction.

Taylor, 11 Va. App. at 652-53, 400 S.E.2d at 795-96 (quoting

Stapleton v. Commonwealth, 140 Va. 475, 486, 124 S.E. 237, 241

(1924) (other citation omitted)). See also Crump, 13 Va. App. at

290, 411 S.E.2d at 241.

A substantially similar case is Smith v. Commonwealth, 17

Va. App. 37, 434 S.E.2d 914 (1993). There, a state trooper

stopped a tractor trailer driven by Smith for a traffic

violation. See id. at 38, 434 S.E.2d at 914. Smith produced an

altered registration card and admitted having altered it. See

id. The trooper charged Smith with violating Code § 46.2-605,

which provides that any person who holds or uses a registration

card, knowing it to be altered, shall be guilty of a Class 6

felony. See id.

In a request similar to appellant's, Smith tendered an

instruction that would have permitted the jury to find him guilty

-27-
of violating Code § 46.2-613(2), a traffic infraction. 5 Smith

"argued that this statute defined a lesser offense included

within Code § 46.2-605, or, alternatively, that the charge

specified under Code § 46.2-605 substantially charged a violation

of Code § 46.2-613(2), and his conviction of the lesser offense

was authorized by Rule 3A:17[(c)]." Id. at 38-39, 434 S.E.2d at

915. The trial court refused this instruction and held "that the

two Code sections defined the same offense, that neither was

included within the other, that the choice of the offense charged

was a matter of prosecutional discretion, and that the issue on

trial was simply whether the offense charged had been proven."
Id. at 39, 434 S.E.2d at 915.

In Smith, we discussed the elements of each offense and

found that "proof of either offense does not necessarily prove

the other, and neither is included within the other." Id. at 40,

434 S.E.2d at 915. Therefore, we held "that Code § 46.2-613 did

not define a lesser included offense in the proscription of Code

§ 46.2-605, or vice versa." Id. at 40, 434 S.E.2d at 915-16.

After fully discussing the lesser offense language contained in

Rule 3A:17(c) and the matter of prosecutional election, we held

that "[b]ecause of the disparity of specified elements, an

accusation under Code § 46.2-605 neither substantially charged

nor necessarily includes a charge under Code § 46.2-613." Id. at
5
Code § 46.2-613(2) prohibits the "display" or possession of
a registration card by one who knows it is fictitious or knows it
has been "canceled, revoked, suspended, or altered."

-28-
40, 434 S.E.2d at 916. Further, we said that "[w]here the

evidence supports prosecution under either of two parallel

statutes, the Commonwealth has the right to elect under which

statute to proceed." Id. at 41, 434 S.E.2d at 916. We affirmed

the trial court's refusal to give Smith's requested instruction.

Id.

In this case, the accused was not entitled to an instruction

on accessory after the fact because it was not an offense

specifically charged. It was not an offense composed entirely of

elements that are also elements of the greater offense;

therefore, it is not a necessarily included offense. It was not

proper for the trial court to give the instruction.
It was improper to give the instruction for another reason.

Where the evidence supports prosecution under either of two

statutes, such as first degree murder or accessory after the fact

in this case, the Commonwealth has the right to elect which

statute to proceed upon. The selection of the statute under

which to prosecute is a matter of prosecutorial election. See

Mason v. Commonwealth, 217 Va. 321, 323-24, 228 S.E.2d 683, 684

(1976) (affirming Commonwealth's right to elect between

prosecuting crime as misdemeanor or felony).

"[T]he institution of criminal charges, as well as their

order and timing, are matters of prosecutorial discretion."

Bradshaw v. Commonwealth, 228 Va. 484, 492, 323 S.E.2d 567, 572

(1984) (citation omitted). See also Kauffmann, 8 Va. App. at

-29-
410, 382 S.E.2d at 284 (choice of offenses for which appellant

will be charged is within Commonwealth attorney's discretion);

Davis v. Commonwealth, 4 Va. App. 27, 30, 353 S.E.2d 905, 907

(1987). If the trial court had granted the instruction requested

by the accused, it would have deprived the Commonwealth's

attorney of his discretion in electing what charges to prosecute.

From the last sentence in Rule 3A:17(c), one could surmise

that the trial court may find the accused not guilty of the

offense charged, but guilty of being an accessory after the fact.

However, the court has this authority only if the previous

sentence in the rule has been complied with, namely, that the

offense of accessory after the fact has been substantially

charged in the pleadings. An accessory after the fact could

never be necessarily included in the charge against the accused.

In my opinion, this sentence gives the trial court discretion to

find the accused guilty of being an accessary after the fact if

the pleadings provide for the accusation and the rights of

neither the Commonwealth nor the accused will be prejudiced. The

parties might consent to an instruction to the jury that they

might find the accused guilty as an accessory after the fact.

The trial court may find the accused guilty, but this is
discretionary with the trial court and must preserve all rights

granted to the parties in the Constitution, statutes and rules.

In this case, because the trial judge refused to give the

instruction, he obviously did not consent to submitting the issue

-30-
to the jury. I find no abuse of discretion in refusing the

instruction.

In this case, it is obvious that the elements of first

degree murder and accessory after the fact are not the same.

Because of this disparity of elements, the accusation of first

degree murder neither substantially charges nor necessarily

includes the charge of accessory after the fact under Code

§ 18.2-19. The trial judge acted properly in refusing the

instruction and directing the jury to decide whether the

defendant was guilty of first degree murder or not guilty as he

pled. I would affirm.

-31-