Lamont Allen Johnson v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
LAMONT ALLEN JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 1239-00-4 JUDGE G. STEVEN AGEE
JULY 31, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General;
Amy L. Marshall, Assistant Attorney General,
on brief), for appellee.
After a jury trial in the Circuit Court of the County of
Fairfax, Lamont Allen Johnson (Johnson) was convicted of robbery
and sentenced to serve an eight-year term of incarceration.
Johnson appeals his conviction averring the trial court erred
for refusing his proffered jury instruction regarding larceny
from the person. For the following reasons, we affirm the
decision of the trial court.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this
appeal are recited. In accordance with well established
principles, we consider the evidence in the light most favorable
to the Commonwealth, the prevailing party below.
I.
The record discloses that on the evening of December 8,
1999, Suzanne Hudak arrived home, exited her vehicle and began
walking towards her townhouse with her handbag over her right
shoulder and a tote bag in her left hand. As Hudak moved toward
the sidewalk she noticed Johnson approaching her. Johnson then
asked whether "Jerome" lived nearby. Hudak replied, "to [my]
knowledge, no one by that name lives in one of the townhouses,"
and then she continued walking towards the stairs to her home.
Despite Hudak's reply, Johnson continued to approach her.
As Hudak was on the second or third step of her stairwell,
Johnson came up directly behind her and tried to wrench the
handbag off her shoulder. Because the strap was around her arm,
Johnson was unable to take the bag from Hudak who had grabbed
the stair handrail.
Johnson began to pull at the bag with greater force. In
doing so he yanked Hudak so forcefully that the handrail she
gripped with her right hand was pulled out of the cement.
Johnson persisted and eventually pulled Hudak and the handbag
backward down the stairs, across the sidewalk and into the
parking lot. The force propelled Hudak to fly face down into
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the pavement resulting in a sprained right wrist, a jammed left
ring finger and a severely bruised left knee. Johnson then
succeeded in freeing the handbag from Hudak and fled on foot.
On January 18, 2000, a Fairfax County grand jury indicted
Johnson charging he "did rob Suzanne Hudak of personal property
valued in excess of $1.00."
At Johnson's jury trial, he presented an alibi defense
which acknowledged that a "robbery" did occur but he did not
commit the offense, as he was elsewhere at the time. Johnson
challenged the victim's description of her assailant to police
and her identification of him as that assailant. Johnson also
provided an alibi witness who testified that the accused was
visiting her at a distant location at the time of the robbery.
Johnson offered no evidence related to a larceny from Hudak.
At the conclusion of the evidence, the Commonwealth and
Johnson proffered jury instructions. The trial judge accepted
the Commonwealth's jury instructions regarding robbery. Johnson
offered instruction "F" which allowed the jury to find him
guilty of larceny from the person if it found the Commonwealth
failed to prove the taking was accomplished by the use of a
threat or intimidation. The proffered instruction also included
direction to the jury as to punishment upon a finding of guilty.
The trial judge informed Johnson's counsel that the
instruction was not proper in a bifurcated trial in the
following colloquy:
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[COUNSEL]: Yes, you're right. Number "F,"
Your Honor, is a guilt or innocence
instruction primarily with the option of the
jury to find larceny from the person as
opposed to robbery if they find no
intimidation or violence.
THE COURT: All right. Well, it's still
it's all mixed up because you've got the
sentencing information. Even if it is
larceny from the person, it would still be
bifurcated because that would be a felony.
[COUNSEL]: Yes, Your Honor.
THE COURT: All right. I'm going to deny
"F." . . . .
Johnson did not object to the denial ruling, submit a
corrected version of the instruction, or ask the trial judge to
redact the punishment portion of his proffered instruction.
After reviewing the final proposed instructions, the trial judge
asked counsel, "Are there any other instructions that anyone
wants me to consider at this stage, the guilt/innocence stage?"
Johnson's counsel responded, "The defense has no other
instructions, Your Honor."
II.
Johnson alleges on appeal that the trial judge erred in
refusing the instruction, despite its defective bifurcation
language, because larceny from the person is a lesser-included
offense of robbery. As such, he argues an entitlement to have
the jury instructed on the lesser offense. It is Johnson's
contention that the lesser-included offense instruction was
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vital to his defense requiring the trial judge to, sua sponte,
amend the proffered instruction and submit it to the jury.
The Commonwealth argues Johnson is barred under Rule 5A:18
from raising the issue as he failed to do so in the trial court.
We are cognizant that "'[a] defendant is entitled to have
the jury instructed only on those theories of the case that are
supported by the evidence.'" Connell v. Commonwealth, 34 Va.
App. 429, 436, 542 S.E.2d 49, 52 (2001) (citation omitted); see
Stewart v. Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509,
513 (1990) (accused not entitled to lesser-included offense
instruction inconsistent with theory of defense); see also
Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103,
105 (1990) (court must instruct on "defendant's theory of
defense," if supported by the evidence). In addition, although
the Commonwealth prevailed at trial, when we consider the
refusal of the trial judge to give a proffered instruction,
"'the appropriate standard of review requires that we view the
evidence with respect to the refused instruction in the light
most favorable to the defendant.'" Seegers v. Commonwealth, 18
Va. App. 641, 643, 455 S.E.2d 720, 722 (1994) (citations
omitted).
In the case at bar we find Johnson's contention not
properly preserved for our consideration and, therefore, barred
by Rule 5A:18. "The primary function of Rule 5A:18 is to alert
the trial judge to possible error so that the judge may consider
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the issue intelligently and take any corrective actions
necessary to avoid unnecessary appeals, reversals and
mistrials." Martin v. Commonwealth, 13 Va. App. 524, 530, 414
S.E.2d 401, 404 (1992) (citing Campbell v. Commonwealth, 12 Va.
App. 47, 480, 405 S.E.2d 1, 2 (1991) (en banc)).
In the case at bar, the defendant proffered an erroneous
instruction. The trial judge pointed out the error whereupon
Johnson agreed that the instruction was erroneous and acquiesced
in the trial judge's denial of the instruction. Johnson did not
complain of any error to the trial judge, did not request a
properly worded instruction similar to that which he proffered,
did not argue to the trial judge that larceny from the person is
a lesser-included offense of robbery, did not argue the evidence
was sufficient for the instruction, and did not argue the
instruction was materially vital to his defense.
In Martin, we held that when a defendant tenders a proper
lesser-included offense instruction, he or she fully alerts the
trial judge and the Commonwealth of his position that sufficient
evidence supports granting the instruction. This places an
affirmative duty on the trial judge to grant the instruction.
Rule 5A:18 does not further require that the defendant "object"
after the refusal to grant a proper instruction in order to
preserve the issue for appeal. 13 Va. App. at 530, 414 S.E.2d
at 404.
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In cases where it has been held that the proffered defense
instruction was erroneously denied, the defense either put on
evidence to support the instruction or argued to the trial judge
the instruction was proper based on the evidence at trial. See
Bryant v. Commonwealth, 216 Va. 390, 219 S.E.2d 669 (1975);
Dalton v. Commonwealth, 29 Va. App. 316, 512 S.E.2d 142 (1999);
Martin, 13 Va. App. 524, 414 S.E.2d 401.
These circumstances are not present in this case. The
proffered instruction was improper on its face. The trial judge
was not on notice that larceny from the person was applicable to
Johnson's case. Johnson failed to make any argument to that
effect. Moreover, his alibi defense at trial contradicted the
proffered instruction. Johnson agreed on several occasions that
Hudak was the victim of a "robbery" and never mentioned larceny
from the person.
In no case has a challenge to the denial of a proffered
instruction by a defendant been preserved for appeal where the
instruction was inaccurate, contrary to the defendant's evidence
and argument, and where the defendant failed to object or argue
to the trial judge any basis for error and failed to accept the
court's invitation for a correct instruction.
Johnson's citation of Whaley v. Commonwealth, 214 Va. 353,
200 S.E.2d 556 (1973), to argue that the trial judge in this
matter had an affirmative duty to sua sponte correct the
instruction is misplaced. The decision in Whaley dealt with the
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denial of fundamental due process by failure to give the basic
presumption of innocence instruction and has no nexus to the
circumstances of this case. Whaley reaffirmed the rule that a
trial judge "is not required to amend or correct an erroneous
instruction . . . [unless] the principle of law [involved] is
materially vital to a defendant in a criminal case." Id. at
355, 200 S.E.2d at 558.
While an instruction on a lesser-included offense may in
some instances be materially vital to a defendant, that is not
the case here where Johnson presented an alibi defense to the
"robbery" instead of simply pleading "not guilty." Johnson
cannot now expect to bootstrap an appellate argument not made to
the trial court and escape the imposition of the limits of Rule
5A:18.
Johnson's assignment of error is barred by Rule 5A:18. We
affirm the ruling of the trial court and, thereby, affirm
Johnson's conviction and sentence.
Affirmed.
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