COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
RONALD EUGENE WALKER
MEMORANDUM OPINION * BY
v. Record No. 2826-98-4 JUDGE CHARLES H. DUFF
MARCH 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
James G. Connell, III, Assistant Public
Defender (Clinton O. Middleton, Deputy Public
Defender, on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Ronald E. Walker, appellant, appeals his conviction for
robbery. Appellant contends that the trial court erred (1) by
instructing the jury that guilt could be inferred from possession
of recently stolen goods, unexplained or falsely denied, and (2)
by refusing to instruct the jury on the lesser-included offenses
of larceny by receiving stolen property and accessory after the
fact. For the following reasons, we find no error and affirm the
conviction.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Facts
David Tipton was delivering pizzas. After making a
delivery, Tipton returned to his car and was confronted by a
person wearing a mask. This person was armed with a knife and
demanded Tipton's car keys. After Tipton gave the person the
keys, the person ran to Tipton's car and drove it away. Tipton
described the person as 5'6" to 5'7" tall and as "slightly
stocky."
Three days later, Tipton's car was involved in an accident.
Appellant was driving Tipton's car and struck a parked car.
Andrew Tirch, a reserve deputy sheriff, heard the crash and went
to the scene. Tirch showed appellant his badge and asked him
questions. Appellant was nervous and said he was "Jason
Jackson." Appellant claimed that the car belonged to his aunt
who lived in Prince William County. Tirch was immediately
suspicious because the car had a Fairfax County decal, and
suspected that the car was stolen. Tirch told appellant to
remain at the scene until the police arrived. Nevertheless,
appellant ran from the scene.
When Officer Jeff King arrived at the scene, he learned
that the car had been stolen three days earlier from Tipton.
King found a steak knife in the car's back seat and a cigarette
pack bearing appellant's fingerprints.
At trial, appellant claimed that P.J. Holland picked him up
and drove him to a party in Tipton's car. According to
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appellant, Holland did not tell him the car was stolen until
after he had gotten into the car. Appellant admitted that three
days later, he was driving the stolen car and had the accident.
Appellant explained that he ran from the scene because he knew
the car was stolen. Appellant claimed he did not know that the
car was the subject of a robbery. Appellant testified that he
is 5'8" tall.
Granted "Recent Possession" Instruction
Appellant claims that the trial court erred by granting
Instruction U. That instruction stated that guilt may be
inferred from possession of recently stolen goods, unexplained
or falsely denied. However, Instruction U was a defense
instruction submitted by defense counsel, and given to the jury
as submitted by the defense.
Appellant cannot now complain that the trial court did as
he requested. "'No litigant, even a defendant in a criminal
case, will be permitted to approbate and reprobate – to invite
error . . . and then to take advantage of the situation created
by his own wrong.'" Manns v. Commonwealth, 13 Va. App. 677,
680, 414 S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwealth,
236 Va. 403, 417, 374 S.E.2d 46, 54 (1988)). See also Doe v.
Simmers, 207 Va. 956, 960, 154 S.E.2d 146, 149 (1967).
Furthermore, even though the trial court is required to properly
instruct the jury, we do not agree that a recent possession
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instruction can never be used in a robbery case. See Parrish v.
Commonwealth, 17 Va. App. 361, 365, 437 S.E.2d 215, 218 (1993).
Refused "Lesser-Included Offense" Instructions
A. Receiving Stolen Property
"If there is any evidence that would support a conviction
for a lesser included offense, the trial court must, upon
request of counsel, instruct the jury as to the lesser included
offense. An instruction, however, must be based on more than a
scintilla of evidence." Miller v. Commonwealth, 5 Va. App. 22,
24, 359 S.E.2d 841, 842 (1987) (citations omitted). "An
instruction is properly refused when it is unsupported by the
evidence." Bennett v. Commonwealth, 8 Va. App. 228, 234, 380
S.E.2d 17, 21 (1989).
Appellant requested an instruction that would have
permitted the jury to convict him of the lesser offense of
receiving stolen property. The trial judge and the prosecutor
agreed that the evidence supported the crime of receiving stolen
property in Prince William County, but not in Fairfax County
where this case was tried. Appellant testified that he received
stolen property at his home in Prince William County. Appellant
said he drove the car a short distance within his Prince William
County neighborhood before he was involved in an accident and
abandoned the car. There was no evidence that appellant
received stolen property in Fairfax County. Because the
evidence did not support the instruction, the trial court did
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not err in refusing the instruction on the lesser crime of
receiving stolen property.
B. Accessory after the Fact
At trial, the appellant was charged only with robbery.
"[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." Commonwealth v. Dalton,
259 Va. ___, ___, ___ S.E.2d ___, ___ (2000). Therefore, the
trial court did not err by denying appellant's request for an
accessory after the fact jury instruction.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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