COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
JOHN ANTONIO FENNELL
MEMORANDUM OPINION * BY
JUDGE LARRY G. ELDER
MARCH 16, 1999
Record No. 2217-97-1
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
Richard C. Clark, Assistant Public Defender
(Office of the Public Defender, on brief), for
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
John Antonio Fennell (appellant) appeals from his
convictions for two counts of robbery pursuant to Code § 18.2-58
and two counts of using a firearm in the commission of a felony
pursuant to Code § 18.2-53.1.
On appeal, he contends the trial
court erred in refusing his proffered jury instruction, which
would have permitted the jury to convict him of being an
accessory after the fact to the two robberies.
For the reasons
that follow, we agree, and we reverse and remand.
In the early morning hours of August 16, 1996, Matthew
Wainscott and Stuart Wynham were robbed at gunpoint.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Leon Bacote, Thomas Darden and Anthony Pitchford were arrested
for these robberies.
Testimony given by the two victims and
other witnesses to the two robberies was sufficient to permit the
conviction of appellant for two counts of robbery as a principal
in the second degree.
The evidence also contained appellant's version of events, a
statement he gave to Detective C.S. Mills following his arrest in
which he attempted to absolve himself of any direct
responsibility for the robberies.
Appellant said that, on the
evening of August 16, 1996, Leon Bacote picked up appellant,
appellant's cousin Thomas Darden, and Bacote's friend Anthony
Appellant, who was fifteen at the time, was the only
juvenile in the group.
Bacote had a shotgun with him, and Bacote
and Pitchford talked about "robbing . . . Navy personnel" because
it was "Navy payday."
Appellant knew the vehicle they were
riding in had been stolen because "the key [was] jammed into the
ignition" and the car "cut off" every time Bacote stopped.
Bacote pulled the car up to the first victim, Wainscott.
They all got out, and appellant stood beside the car.
walked up to Wainscott while asking him for directions and hit
him with the gun.
Pitchford searched Wainscott's pockets, and
Bacote took Wainscott's cigarettes.
Then they "all ran back to
the car" and fled with Pitchford at the wheel.
Detective Mills he did not touch or kick Wainscott.
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Sometime later, Pitchford pulled the car up to Wynham and
All four got out, and Bacote approached Wynham
with the shotgun and asked for Wynham's money.
Darden hit Wynham
with his fists, and Bacote hit Wynham in the head with the
Appellant, Bacote and Darden ran off.
followed on foot and told them that the car had "cut off," and
then he fled on foot.
At Bacote's urging, appellant broke into a
car and started it, and then Bacote drove appellant and Darden
from the scene.
Appellant subsequently pleaded guilty to grand larceny and
receiving stolen property.
At his trial on the two charges of
robbery and two charges of use of a firearm in the commission of
a felony, appellant proffered Jury Instructions 18A and 18B.
Instruction 18A permitted the jury to find appellant guilty of
being only an accessory after the fact to the robberies.
Instruction 18B provided that if the jury found appellant not
guilty of robbery but guilty of being an accessory after the
fact, it should find him not guilty of using a firearm in the
commission of a felony.
These instructions went unchallenged as
general recitations of the law, but the prosecution contended
that Instruction 18A was inappropriate because the crime of being
an accessory after the fact was not a lesser-included offense of
In proffering instructions 18A and 18B, appellant's
counsel made the following argument:
[T]he cases that I am submitting are Manley
v. Commonwealth, 222 Va. 642, a 1981 case,
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and McClung v. Commonwealth, 215 Va. 654, a
1975 case; and the reason I would ask for an
accessory after the fact instruction for Mr.
Fennell's case is I think there's sufficient
evidence to support that instruction.
The elements of accessory after the fact
are that the felony must be completed, that
the person know that the felony was completed
and somehow they aided or assisted the person
who committed the felony; and I think, at
least from the evidence we have today,
there's enough to get the instruction in; and
I think there's enough for the jury to at
least consider the instruction.
In the Manley case, it was a situation
where a person was already found guilty of an
accessory after the fact, and it was
overturned because there wasn't sufficient
evidence for that, but I think some of the
language is important on the last page of
It refers to in the last paragraph the
person was indicted for robbery. The
argument was that he was a principal in the
second degree. The jury convicted him of
accessory after the fact. So the court held
that misdemeanor conviction acquitted the
accused of all the higher grades of the
offense charged. So obviously, there was an
instruction granted in that situation of
accessory after the fact.
With the McClung case, the reason I
think that's important is not specific to the
facts of the case, but just the holding that
if any proffered instruction finds any
supporting credible evidence, its refusal is
reversible error, and I think -- to
anticipate what [the prosecutor] is going to
argue, I think their argument on the issue of
it being a lesser included [offense] is
somewhat restrictive. I think the way they
are going to argue this situation is you
would never be able to get an accessory after
the fact instruction in. So based on the
Manley case, I would ask the court to grant
In further argument, counsel for appellant
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I believe the Manley case is closer to the
facts we have today than [to the cases cited
by the Commonwealth] -- that don't have to do
with accessory after the fact. I would argue
accessory after the fact would be made into
an attempt type situation with evidence that
supports that instruction, and we should be
allowed to get that instruction in.
In denying the instruction, the trial court
said, "I don't think it's a lesser included offense, and [the]
Commonwealth could have chosen to charge him with that but did
I think it's either he's guilty of the robbery or not
guilty of the robbery . . . ."
As a preliminary matter, the Commonwealth contends that
appellant was not entitled to an accessory-after-the-fact
instruction because that offense was not lesser-included in
Although we agree, for the reasons set forth in Dalton
v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1999) (en
banc), that the crime of being an accessory after the fact is not
truly lesser-included in robbery or any other offense, we
nevertheless conclude that appellant was legally entitled to such
an instruction pursuant to Code § 19.2-286 and Rule 3A:17(c) if
such an instruction was factually supported by the evidence.
Appellant did not specifically cite Code § 19.2-286 or Rule
3A:17(c) to the trial court.
However, as this Court previously
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[t]he contemporaneous objection rule requires
only that a party inform the trial court of
the action it wishes the court to take or its
objection to the action of the court and the
"grounds therefor." Code § 8.01-384; see
also Rule 5A:18; Campbell v. Commonwealth,
[12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991)
(en banc)]. This Rule does not prohibit
reliance on statutes or cases not presented
to the trial court to support, on appeal, a
position otherwise adequately presented at
trial. R. Martineau, Modern Appellate
Practice § 3.8 (1983). Nor does it prevent
this Court, on its own initiative, from
relying on statutory or judicial authority
that was not presented to the trial court or
referred to in the briefs submitted by the
parties. See id. at § 3.9.
Lash v. County of Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851,
852-53 (1992) (en banc) (emphasis added).
Here, appellant proffered an accessory-after-the-fact
instruction and stated he thought the trial court should give the
instruction because "there's sufficient evidence to support that
Appellant went further by citing Manley v.
Commonwealth, 222 Va. 642, 283 S.E.2d 207 (1981), in which the
trial court gave an accessory-after-the-fact instruction even
though the defendant had been indicted for robbery as a
Id. at 645, 283 S.E.2d at 208.
analogized to the situation in which one who is indicted as a
principal for a completed offense is instead convicted for an
attempt to commit that offense.
Both Code § 19.2-286 1 and Rule
Code § 19.2-286 provides:
Conviction of attempt or as accessory on
indictment for felony; effect of general
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3A:17(c) 2 permit conviction for attempt to commit an offense or
for being an accessory after the fact to that offense even though
only the underlying substantive offense was charged.
although appellant did not expressly cite Code § 19.2-286 or Rule
3A:17(c), we hold that his citation to Manley and comparison to
conviction for an attempt were sufficient to put the trial court
on notice of the basis for his proffer and, therefore, to permit
our consideration of the rule and statute on appeal.
We next consider whether the accessory-after-the-fact
instruction was supported by the evidence.
"To constitute one an accessory after the
fact, three things are requisite: 1. The
felony must be completed; 2. [The accessory]
must know that the felon is guilty; 3. [The
accessory] must receive, relieve, comfort or
assist him. It is necessary that the
accessory have notice, direct or implied, at
verdict of not guilty. -- 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
Rule 3A:17(c) provides:
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.
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the time he assists or comforts the felon,
that he has committed a felony."
Manley, 222 Va. at 645, 283 S.E.2d at 208 (quoting Wren v.
Commonwealth, 67 Va. (26 Gratt.) 952, 956 (1875)).
discussed in Dalton, "'[a] defendant is entitled to have the jury
instructed . . . 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
___ Va. App. at ___, ___ S.E.2d at ___ (quoting Frye
v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986)).
In determining whether sufficient evidence supported the giving
of a proffered instruction, we view the evidence in the light
most favorable to the party requesting the instruction.
Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200
Here, viewing the evidence in the light most favorable to
appellant, appellant was arrested while riding as a passenger in
a stolen vehicle containing two other people.
Appellant, who was
fifteen years old at the time of the charged offenses, told
Detective Mills that he was present as a passenger and observer
during the planning and execution of the robberies committed by
his adult companions earlier in the evening but that he did not
participate other than by being present and subsequently helping
to steal a car in which appellant and two of his companions fled.
This evidence, viewed in the light most favorable to appellant,
was sufficient to support the giving of an
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accessory-after-the-fact instruction regarding the two robbery
For these reasons, we reverse appellant's conviction and
remand to the trial court.
Reversed and remanded.
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Lemons, J., dissenting.
Fennell did not raise at trial or on appeal to this Court
either Rule 3A:17(c) or Code § 19.2-286 in support of his
For the reasons more specifically
expressed in my dissent in Dalton v. Commonwealth, ___ Va. App.
___,___, ___ S.E.2d ___, ___ (1999) (en banc), I dissent.
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