ELDER, Judge.
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 testi[385]*385fled 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 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.” [386]*386When the trial court refused to give the instruction, 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 re- • fused 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 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 [387]*387that 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 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.
Free access — add to your briefcase to read the full text and ask questions with AI
ELDER, Judge.
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 testi[385]*385fled 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 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.” [386]*386When the trial court refused to give the instruction, 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 re- • fused 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 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 [387]*387that 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 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] defen-, dant 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. [388]*388Commonwealth, 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 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.) 592, 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 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 [389]*389(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 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], eomfort[ed] or assisted]” 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, [390]*390283 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 other offense.2 Cf. Thornton, 65 Va. (24 Gratt.) at 232 (stating 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 [391]*391accused 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 S.E.2d 686, 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. 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.
[392]*392For the foregoing reasons, we reverse the conviction of first degree murder and remand for further proceedings consistent with this opinion.
Reversed and remanded.