COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Annunziata 

Argued at Richmond, Virginia 

BRANDON LEE SHIFFLETT 

 MEMORANDUM OPINION* BY 

v. Record No. 2702-99-2 JUDGE LARRY G. ELDER 

 DECEMBER 28, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Llezelle A. Dugger, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Thomas D. Bagwell, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Brandon Lee Shifflett (appellant), indicted for attempted 

statutory burglary with intent to commit assault and battery in 

violation of Code §§ 18.2-26 and 18.2-91, appeals from his 

conviction for trespass in violation of Code § 18.2-119. On 

appeal, he contends the evidence was insufficient to support the 

trespass conviction. The resolution of this case is governed by 

our recent decision in Lowe v. Commonwealth, 33 Va. App. 583, 

592, 535 S.E.2d 689, 693 (2000), in which we held that trespass 

in violation of Code § 18.2-119 is not a lesser-included offense 

of Code § 18.2-91 and that a trial court lacks the authority to 
convict for trespass under an indictment charging breaking and 

entering even if the accused fails to object. Thus, we reverse 

and dismiss appellant's trespass conviction. 

 "'The lack of authority of the trial court to render the 

judgment that it did may be raised at any time by this Court on 

its own motion.'" Lowe, 33 Va. App. at 589, 535 S.E.2d at 692 

(quoting Fontaine v. Commonwealth, 25 Va. App. 156, 165, 487 

S.E.2d 241, 244 (1997) (noting such lack of authority is an 

absence of jurisdiction)). 

"The fact that the defendant did not object 

to . . . the conviction on the ground that 

he was convicted for an offense with which 

he was not charged is of no moment. Unless 

an indictment is amended to conform to the 

proof or an accused acquiesces in being 

found guilty of an offense other than the 

one charged, a trial court lacks the 

authority to find an accused guilty of an 

offense other than the one charged or a 

lesser included offense." 

Id. at 589, 535 S.E.2d at 691-92 (quoting Fontaine, 25 Va. App. 

at 165, 487 S.E.2d at 244). Further, "[a]cquiescence requires 

something more than a mere failure to object." Id. at 589, 535 

S.E.2d at 692. Where a defendant is convicted of the charged 

felony and "implore[s]" the court to set aside the felony 

conviction and find him guilty instead of a misdemeanor not 

lesser-included in the charged felony, the defendant may not be 

heard to object. Manns v. Commonwealth, 13 Va. App. 677, 679, 

414 S.E.2d 613, 614-15 (1992). Such an action constitutes, in 

essence, the defendant's request to the trial court to amend the 

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indictment, thereby permitting conviction for the unrelated 

misdemeanor. However, a mere statement to the judge seeking to 

clarify that one's ultimate conviction was for a misdemeanor 

rather than the felony for which he was indicted does not 

constitute acquiescence. See Fontaine, 25 Va. App. at 165, 487 

S.E.2d at 244. 

 Here, appellant's counsel argued the evidence was 

insufficient to prove either an attempt to break and enter or an 

intent to commit an assault and battery. The trial court then 

asked counsel whether it could convict appellant of trespassing, 

and counsel argued the evidence was insufficient to prove the 

elements of that offense. No discussion occurred regarding 

whether trespass in violation of Code § 18.2-119 was a 

lesser-included offense of attempted breaking and entering in 

violation of Code § 18.2-91, and thus, appellant did not 

acquiesce in being convicted for trespass. 

 The trial court lacked the authority to convict appellant 

of trespass, see Lowe, 33 Va. App. at 592, 535 S.E.2d at 693, 

and we reverse and dismiss appellant's conviction. 

Reversed and dismissed.

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