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 appellant.
Daniel J. Munroe, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Benton, Elder and Lemons Argued at Norfolk, Virginia
MEMORANDUM OPINION [*]
LARRY G. ELDER JUDGE
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. Appellant, 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 Pitchford. 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. Bacote 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. Appellant told Detective Mills he did not touch or kick Wainscott.
Sometime later, Pitchford pulled the car up to Wynham and William Jadgman. 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 shotgun. Appellant, Bacote and Darden ran off. Pitchford 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 robbery. 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, 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; ...