# VIRGINIA: In the Court of Appeals of Virginia on Tuesday 

### the 22nd 

### day of March , 2016

. Victoria Elizabeth Dufresne , Appellant, against Record No. 0281-15-2 Circuit Court No. CR 14-F-4184 Commonwealth of Virginia, Appell ee. Upon a Petition for Rehearing En Banc

Before the Full Court

On February 22, 2016 came the appellee , by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on February 9, 2016, and grant a rehearing en banc on the issue(s) raised in the petition. On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on February 9, 2016 is stayed pending the decision of the Court en banc , and the appeal is reinstated on the docket of this Court. The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and served on opposing counsel. In addition, twelve printed copies of each brief shall be filed. It is furth er ordered that the appell ee shall file an electronic version and twelve additional copies of the appendix previously filed in this case. 1

A Copy,

Teste: Cynthia L. McCoy, Clerk original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court Deputy Clerk

1 The guideli nes for filing electronic briefs and appendices can be found at www.courts.state.va.us/online/vaces/resources/guidelines.pdf.COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, B eales and Senior Judge Frank Argued at Richmond, Virginia

VICTORIA ELIZABETH DUFRESNE MEMORANDUM OPINION * v. Record No. 0281-15-2 JUDGE ROBERT P. FRANK FEBRUARY 9, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Gregory L. Rupe, Judge Dorian Dalton, Senior Assistan t Public Defender, for appellant. Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. Victoria Elizabeth Dufresne (appellant), afte r being indicted for r obbery, in violation of Code § 18.2-58, was convicted in a bench trial of grand larceny, in viola tion of Code § 18.2-95. On appeal, she contends the trial court erred in denying her motion to set aside the verdict and in finding her guilty of grand larceny, which she c ontends is not a lesser-included offense of robbery. For the reasons state d, we reverse the trial court.

BACKGROUND Since our decision is based on the procedural aspects of this case and not the actual facts of the offense, we limit our factual recitati ons to the procedural history of the case. Appellant was indicted and tried for robber y. After the Commonwealth rested, appellant moved to strike the evidence, maintaining the ev idence failed to prove the taking of the victim’sUNPUBLISHED- 2 - property was accomplished by violence, intimidation, or threat. After appellant argued her motion, the following exchange occurred: The Court: What are you te lling me she is guilty of? [Defense Counsel]: Larceny. The Court: Grand larceny? [Defense Counsel]: They prove va lue with the cash. So yes. I would say that they have met the burden for grand larceny. Appellant concluded her renewed motion to strike by saying, “For those reasons, I’d ask for the charge to be dropped down to grand larceny.” The trial cour t overruled appellant’s motion but ultimately convicted appellant of grand larceny. Appellant’s sentencing hearing was set for February 5, 2015. On January 26, 2015, appellant filed a motion to set aside the verdict, arguing that grand larceny is not a lesser-included offense of robbe ry, and contending that she should be convicted only of petit larceny. The Commonwealth filed a response to appellant’s motion stating that “[t]he Commonwealth concedes th at defense counsel’s motion would have merit -- except for the principle that defense counsel may not approbate and reprobate by inviting error and then seek

reversal of the conviction ba sed upon such invited error. Rowe v. Commonwealth, 277 Va. 495, 502-503 (2009).” On February 5, 2015, after hearing argument on appellant’s motion, the trial court denied the motion and sentenced appellant on the grand larceny charge.

ANALYSIS Appellant contends the trial court erred in reducing the robbe ry charge to grand larceny, instead of petit larceny, since grand larceny is not a lesser-included offense of robbery. 1 “This

1 The Commonwealth, in its brief, does not a ddress the merits of appellant’s contention but argues only the concepts of “invite d error” and “approbate and reprobate.”- 3 - appeal presents a pure question of law to which we apply a de novo standard of review.” Conley v. Commonwealth, 284 Va. 691, 693, 733 S.E.2d 927, 928 (2012).

Procedural Bar We first address whether appellant is pro cedurally barred from asserting her argument. It is uncontroverted that, at trial, appellant agreed that grand larceny was a proper offense for which she could be convicted. Nevertheless, while the trial court st ill had jurisdiction over the case, 2 appellant filed a motion to set aside the verdict, arguing that grand larceny was not a proper offense for which she could be convicted because it is not a lesser-included offense of robbery. Appellant now challenges on appeal the trial court’s d ecision to deny her motion to set

aside the verdict and to c onvict her of grand larceny. Analytically, the contemporane ous objection rule embodied in Rule 5A:18 is instructive. The contemporaneous objection rule, embodied in Rule 5A:18 in the Court of Appeals and Ru le 5:25 in this Court, is based on the principle that a litigant ha s the responsibility to afford a court the opportunity to consider and correct a perceived error before such error is brought to th e appellate court for review. Reid v. Baumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 781 (1977). The contemporaneous objection rules in each court exist “to protect the trial court from appeals based upon undisclosed grounds, to prevent the setting of tr aps on appeal, to enable the trial judge to rule intelligently, and to avoid unnecessary reversals and mistrials.” Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000) (quoting Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)). These rules are not limited to evidentiary rulings and require objection while the tribunal is in a position to correct a claimed error. Id.; Reid v. Baumgardner, 217 Va. at 774, 232 S.E.2d at 781. Williams v. Gloucester Sheriff's Dep’ t, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003).

2 The Commonwealth does not contend the mo tion to set aside the verdict itself was untimely filed.- 4 - Clearly, the motion to set asid e in this case afforded the trial court an opportunity “to consider and correct a perceived error”—that the court had convicted appellant of a crime that was neither charged nor a lesser- included offense of a charged cr ime—“before such error [was] brought to the appellate court for review.” Appellant’s assignment of error and her argument on appeal is the identical one contained in her mo tion to set aside. A lthough appellant erred in requesting the court to convict he r of grand larceny, something th e court could not legally do, she nevertheless brought the error to the court’s attention while the court still had jurisdiction over the case and still had the opportunity to correct its error. Therefore, we conclude appellant is not barred from contending grand larceny is not a lesser-included offense of robbery. Nevertheless, the Commonwealth argues the doctrines of “i nvited error” and “approbate/reprobate” bar appellant’ s contentions on appeal. It is well-settled Virginia law that [a] litigant is not allowed to “approbate and reprobate.” Hurley v. Bennett, 163 Va. 241, 252, 176 S.E. 171, 175 (1934). This Court has stated that a part y may not “in the course of the same litigation occupy inconsistent positions.” Id.; see also Rowe v. Commonwealth, 277 Va. 495, 502, [675] S.E.2d [161, 164] (2009) (this day decided) (ci ting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006) and Powell v. Commonwealth, 267 Va. 107, 144, 590 S.E.2d 537, 560 (2004)). It is improper for a litigant to inv ite error and take advantage of the situation created by her own wrong. Rowe, 277 Va. at 502, 675 S.E.2d at [164]; Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988). The prohibition against approbation and reprobation forces a litigant to elect a particular posit ion, and confines a litigant to the position that she first adopted. Matthews v. Matthews, 277 Va. 522, 528, 675 S.E.2d 157, 160 (2009).

The Commonwealth relied at trial on the S upreme Court’s decision in Rowe as the focal point of its argument. In Rowe, 277 Va. at 500, 675 S.E.2d at 163, Rowe was initially convicted of attempted capital murder, despite his argum ent that felony assault and battery on a police- 5 - officer was a lesser-included offense of attempte d capital murder. Upon conviction, Rowe filed a motion to reconsider, arguing inter alia that “if the trial court will consider the lesser-included offenses under the attempted capital murder of a police officer charge, [appellant] is not guilty of any lesser-included offenses . . . .” Rowe v. Commonwealth, 07 VAP UNP 3196061, Record No. 3196-06-1 (Aug. 14, 2007). Rowe filed a post-tri al motion to reconsider, where he again urged the trial court to convict him of assault and battery on a police officer. The trial court vacated its finding of guilt on the at tempted capital murder charge and convicted Rowe of assault and battery of a law enforcement officer, as he had requested. Rowe, 277 Va. at 500, 675 S.E.2d at 163. Rowe then petitioned this Court for appeal , arguing for the first time that he could not be convicted of assault and battery of a law enforcement officer becau se it was not a lesser-included offense of attempted capital murder. Rowe, 07 VAP UNP 3196061. This Court denied the petition for that assignment of error, concluding th at “[b]ecause appellant ne ver raised this issue at trial, Rule 5A:18 bars our c onsideration of this question on a ppeal.” Id. The Supreme Court concluded it was “not necessary to specifically address the ques tion of Rowe’s compliance with Rules 5A:20(c) and 5A:18 because Rowe invited the very error of which he now complains. His approbation and reprobation is neces sarily fatal to his lesser-inc luded-offense argument.” Rowe, 277 Va. at 501-02, 675 S.E.2d 164. The Court reasone d that defense counsel had invited the error by arguing for the lesser charge and maintain ing that it was a lesser-included offense. See id. at 503-04, 675 S.E.2d at 164-65. The Commonwealth’s and the dissent’s reliance on Rowe is misplaced. At no time while the trial court had jurisdiction did Rowe attemp t to correct his initial position. Instead, he continued to argue his erroneous st atement of the law in his motion to reconsider, i.e. that assault and battery of a police officer is a lesser-included offense of a ttempted capital murder. At no time did he give the trial court an opportunity to re-evaluate his earlier misstatement of the law.- 6 - At no time did Rowe contend to the trial court th at his earlier position was incorrect. Rowe’s

invitation of error was never withdrawn nor aba ndoned. Thus, Rowe never gave the trial court the opportunity to co rrect its error. The dissent’s analysis gives no weight to a ppellant’s motion to set aside the verdict, informing the trial court that she had abandoned he r earlier position. On appeal, unlike in Rowe, appellant took the same position in her motion to set aside the verdict as she now takes on appeal. In sum, Rowe is dis tinguishable on its facts and does not support the dissent’s analysis. To adopt the dissent’s applicati on of Rowe would mean that an attorney who acquiesces to a mistake of law during a trial would be forever bound by the error with no opportunity to correct it by bringing it to the trial court’s attention. Such an interpretation simply cannot be correct. 3

The Commonwealth further maintains the re lief sought in the mo tion to set aside the verdict was untimely requested. The Commonw ealth argues that the motion to set aside

therefore should not be considere d. As a result, appellant has not avoided the effect of the “approbate/reprobate” doctrine and is bound by her earlier concession that grand larceny was a charge upon which she properly could be convi cted. The dissent a dopts this position.

The Commonwealth cites Creamer v. Commonwealth, 64 Va. App. 185, 767 S.E.2d 226 (2015), which addresses the approbate-reprobate doctrine as well as the timeliness of a

3 The dissent notes that appellant acquies ced without objection when the trial court accepted her theory and convicted her of grand la rceny. We note that the Commonwealth failed to object to the court’s decision to convict appellant of a crime that was neither charged nor a lesser-included offense. The trial court commen ted that appellant had “conceded” that she was guilty of grand larceny when she admitted the value of the property taken. However, “[a] party can concede the facts but cannot con cede the law.” Cofield v. Nuckles , 239 Va. 186, 194, 387 S.E.2d 493, 498 (1990). Thus, appellant could not “concede” that grand larceny was a lesser-included offense of robbery. The “judge is presumed to know the law and to apply it correctly in each case.” Groves v. Comm onwealth, 50 Va. App. 57, 62, 646 S.E.2d 28, 30 (2007) (quoting Crest v. Commonwealt h, 40 Va. App. 165, 172 n.3, 578 S.E.2d 88, 91 n.3 (2003)). Where, as here, the trial court makes an error of law, the parties must have the opportunity to alert the court to the error at a time when the cour t can consider and correct it.- 7 - post-verdict proffer. At trial, Creamer sp ecifically stated “he would not object to the Commonwealth’s request ‘to prohibit [Davis] from testifying for impeachment of the

Commonwealth’s witnesses . . . .” Id. at 203, 767 S.E.2d at 234. However, post-trial, Creamer proffered that Davis would contradict certain pi eces of the Commonwealth’s case. Id. In this context, this Court held that Creamer approbated and reprobated, taking one position at trial and a contradictory positi on post-trial. Id. The dissent maintains that appellant was prohibited “from taking a new position of law that was inconsistent with and mutually contradi ctory to her position at trial.” (Emphasis and quotation marks omitted). However, the motion to set aside the verdict was part of the trial phase. As stated above, “approbate and reproba te” bars a party from occupying inconsistent positions or positions mutually contradictory. The entire theory of approbate and reprobate is premised on a party “taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.” Rowe, 277 Va. at 502, 675 S.E.2d at 164 (quoting Cangiano v. LSH Bldg. C o., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). Appellant here did not maintain two mutually exclusive positions because she abandoned her earlier position while still in the trial phase. Appellant’s position in both the trial court and on appeal has been consistently that there was insufficient evidence to convict her of robbery because the Commonwealth failed to prove the el ement of violence, intimidation, or threat of serious bodily harm. Failure to prove this elem ent of robbery converts th e act into a larceny. Thus approbate and reprobate and the cases cited by the Comm onwealth have no application. Appellant, through her motion to set aside, made it clear she objected to being convicted of grand larceny, despite her earlier positi on. Thus, prior to sentencing, th e trial judge had the opportunity to hear additional argument and ch ange his decision on the issue if he was so inclined. Unlike in- 8 - Rowe, where the defendant changed position during the course of litigation, appellant here kept the same position at the conclusion of the trial phase as she argues now on appeal. At oral argument, the Commonwealth ar gued that Smith v. Massachusetts, 543 U.S. 462 (2005), precluded the trial court from reconsidering its verdict, thus barring appellant’s motion to

set aside the verdict. Smith is a double jeopardy case, involving the trial c ourt’s reconsideration of a not guilty finding, which essen tially re-tried the defendant af ter he was acquitted. At the conclusion of the prosecution’s cas e the trial court granted what was the equivalent of a motion to strike, finding Smith not guilty of a weapons charge. Id. at 465. During a recess before closing argument, the trial court was advised of additional legal precedent regarding the weapons charge. The trial court announced it was revers ing the prior ruling, and allowed the weapons charge to go to the jury. Id. The jury then convicted Smith of that weapons char ge. Id. at 466. The issue before the United States Supr eme Court was whether the trial court could reconsider and change its earlier acquittal without violating d ouble jeopardy. Id. at 464. The Supreme Court found the acquittal wa s a final judgment and could not be changed. Id. at 473. The instant case is quite different. A moti on to vacate or set aside is premised on a judgment or verdict already rendered. To argue th at such a motion must be made at the time of rendering the judgment or verdict was decided ignor es the role of such motions. Clearly these motions seek post-verdict relief. In a criminal context, when the defendant asks for the trial

court to reconsider the verdic t, there are no double jeopardy issu es. Smith does not eliminate such post-verdict motions. We thus conclude that Smith does not support the Commonwealth’s argument. The Commonwealth’s reliance on Smith seems to be premised on the assumption that the trial court would not have acquitted appellant of robbery had it known at the time that grand larceny was not a lesser-included offense of robbery. Thus, the Commonwealth seems to- 9 - suggest, it would somehow be unfair for appellant to suggest that she could be convicted of grand larceny and then take advantage of that er roneous assertion by argui ng later that she could only be convicted of petit larceny at a time when the trial court could not revisit its decision to acquit her of robbery. The problem with this argument is the faulty premise upon which it is based. Nothing in the record s uggests that the trial court’s deci sion to strike the evidence of robbery was based on anything other than the Co mmonwealth’s failure to prove the necessary element of a taking by violence. The Commonw ealth’s argument that the trial court was engaging in some sort of judi cial grace is simply unfounded. The dissent claims appellant invited error “a nd then attempt[ed] to take advantage of the situation created by [her] own wrong.” Ro we, 277 Va. at 502, 675 S.E.2d at 164 (quoting Cangiano, 271 Va. at 181, 623 S.E.2d at 895), and t hus manufactured a scenario in which the

trial court was unable to convict her of the very offense whic h appellant asked the Court to convict her. Again, this contenti on fails to consider that the mo tion to set aside gave the trial court an opportunity to reconsider its earlier ruling. It is clear from the record that the trial court was fully briefed and that the issue was fully argu ed. The trial court did not rely on appellant’s concession during the guilt phase of the trial. Th ere was no mischief but instead a full airing of appellant’s later position. By filing the motion to set aside the verdict, appellant timely made her position clear that grand larceny is not a lesser-inc luded offense of robbery. A challenge to the sufficiency of the evidence may be made by a motion to set aside the verdict. See Howa rd v. Commonwealth, 21 Va. App. 473, 478, 465 S.E.2d 142, 144 (1995). We conc lude that appellant timely made her objection known to the trial cour t by her motion to set aside the verdict and that the motion preserved appellant’s contenti on for consideration on appeal.- 10 - “While the doctrine of invited error re mains good law, it simply has no application where, as here, the record shows that a party clearly objected to a specific ruling of the trial court to which error is assigned on appeal . . . .” King v. Common wealth, 264 Va. 576, 582, 570 S.E.2d 863, 866 (2002). Therefore, we conclude that appellant is not procedurally barred from raising on appeal the trial court’s error in convicti ng her of grand larceny.

Lesser-Included Offense

The Due Process Clauses of the Constitution of the United States and the Constitution of Virginia mandate that an accused be given proper notification of the char ges against him. U.S. Const. amend. XIV; Va. Const. art. 1, § 8. Code § 19.2-220 provides, in pertinent part, that an indictment shall be “a plain, concise and definite written statement, (1 ) naming the accused, (2) describing the offense charged, (3) identifying the county, city or town in which the accused committed the o ffense, and (4) reciting that the accused committed the offense on or about a certain date.” An indictment, to be sufficient, must give an accused notice of the nature and character of the charged offense so the accused can make his defense. Satcher v. Commonwealth, 244 Va. 220, 231, 421 S.E.2d 821, 828 (1992), cert. denied, 507 U.S. 933 (1993). It is firmly established, therefore, that an accused cannot be convicted of a crime that has not been charged, unless the crime is a lesser-included offense of the crime charged. . . . An offense is not a lesser-included offense of a charged offense unless all its elements are included in the offense charged. Stated differently, an offense is not a lesser-included offense if it contains an element that the charged offense does not contain. Commonwealth v. Dalton, 259 Va. 249, 253, 524 S.E .2d 860, 862 (2000). Thus, our inquiry is whether all the elements of grand larceny are in cluded in robbery. We co nclude that they are

not. Robbery is a common law crime in Virginia. It is defined as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 605-06 (1973) (quoting Jones v. Commonwea lth, 172 Va. 615, 618, 1 S.E.2d 300, 301 (1939)).- 11 - Larceny, a common law crime, is defined as the unlawful taking of anot her’s property without his permission and with the inte nt to permanently deprive the owner of that property. See Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S. E.2d 761, 763 (2001). Simple larceny is raised to grand larceny if the value of the stolen property is $200 or more. See Code § 18.2-95. That value is an essential element of gr and larceny. Britt v. Commonwealth, 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008). Unlike grand la rceny, robbery has no value element. 4

This Court’s decision in Graves v. Commonwealth, 21 Va. App. 161, 462 S.E.2d 902 (1995), aff’d on reh’g en banc, 22 Va. App. 262, 468 S.E.2d 710 (1996), is instructive. There, we held larceny from the person is not a le sser-included offense of robbery. Id. at 166, 462 S.E.2d at 904. “While the definition of robbery in cludes, as an element, the theft of property, it does not include, as elements, eith er the value of the property take n or that the property be taken from the person of the victim.” Id. at 164, 462 S.E.2d at 903. Similarly, a conviction of grand larceny requi res proof that the st olen property had a value of $200 or more, but robbery does not. We see no principled reas on why Graves does not control our analysis in the present case. Appellant further contends the trial court should have re duced grand larceny to petit larceny because the latter is a lesser-included offense of robbery. 5 She cites Jones v. Commonwealth, 218 Va. 757, 759-60, 240 S.E.2d 658, 660 (1978), for the proposition that

4 In affirming a robbery conviction, the Virginia Supreme Court found that the defendant’s “taking of the victim ’s shirt and sweater, by violence a nd against his will, is in itself sufficient to constitute a robbe ry. These items are presumed to have some value, and no particular value need be shown.” Si mpson v. Commonwealth, 227 Va. 557, 567, 318 S.E.2d 386, 392 (1984).

5 At oral argument, the Commonwealth c onceded petit larceny is a lesser-included offense of robbery. While we are not bound by a party’s concessions of law, see Copeland v. Commonwealth, 52 Va. App. 529, 532, 664 S.E.2d 528, 530 (2008), we nevertheless agree with the Commonwealth’s concession.- 12 - [d]efinitionally, theft is an esse ntial component of robbery and charged as such in every robbe ry indictment. Manifestly, a robbery indictment includes all elements of whatever larceny offense it charges, whether grand or petit, and the larceny offense charged is, therefore, le sser-included in robbery. The Supreme Court of Virginia revisite d Jones in Commonwealth v. Hudgins, 269 Va. 602, 611 S.E.2d 362 (2005). In that case, the Cour t concluded that robb ery and grand larceny from the person are not the same offense for double jeopardy purposes. Id. at 608, 611 S.E.2d at 366. The Court focused upon elements of the offe nses of robbery and grand larceny from the person, not upon whether, as stated in Jones, “the theft [had been] expressly charged in the . . . indictment.” Jones, 218 Va. at 759, 240 S.E .2d at 660. The Court in Hudgins concluded that “to the extent that Jones may be at odds with the conclusion reached here, it is expressly overruled.” Hudgins, 269 Va. at 698, 611 S.E.2d at 366. Nonetheless, Jones remains valid authority th at petit larceny is an essential element of robbery. The core of a robbery offense is an unlawful taking, as in petit larceny. Every commission of robbery is also a petit lar ceny. See Bazemore v. Commonwealth, 210 Va. 351, 353, 170 S.E.2d 774, 776 (1969) (observing “larceny is an offense included in a charge of robbery”); Clay v. Commonwealth, 30 Va. App. 254, 260, 516 S.E.2d 684, 686 (1999) ( en banc ) (stating “[l]arceny is a lesser-included offense of robbery”). Because all of the elements of petit larceny are contained in robbery, petit larc eny is a lesser-included offense of robbery.

CONCLUSION Therefore, we reverse appellant’s convicti on of grand larceny and remand to the trial court for further proceedings for petit larceny, if the Commonwealth be so advised. See Graves, 21 Va. App. at 167, 462 S.E.2d at 905.

Reversed and remanded.- 13 - Beales, J., dissenting. I respectfully dissent . The majority c oncludes that the tr ial court committed reversible error when it was unwilling to vacate appellant’s conviction for grand larceny. Because appellant’s trial counsel directly asked th e trial court to convict appellant of grand larceny, I would apply the doctrine of invited error to the specific facts of this case. The Supreme Court’s decision in Rowe v. Commonwealth, 277 Va. 495, 675 S.E.2d 161 (2009), is highly instructive here. In that case, the Supreme Court held that “[a] party may not approbate and reprobat e by taking successive po sitions in the co urse of litigation that are either inconsistent with each other or mutually contra dictory. Nor may a party invite error and then attempt to take advantage of the situation created by his own wrong.” Id. at 502, 675 S.E.2d at 164 (quoting Cangiano v. LSH Bldg. Co ., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). The plain language of Rowe makes clear that it is a prohibition of two types of conduct. First, a party is not

allowed to invite a trial court to make an er ror of law and then seek to obtain a benefit created by that wrong. Second, a party is not allowed to take inco nsistent or mutually contradictory positions of law “in the course of litigatio n.” Id. Because appellant has vi olated both prohibitions of Rowe, I

would affirm the trial court.

APPELLANT INVITED THE TRIAL COUR T TO MAKE AN ERROR OF LAW

This case involves a defendan t who was indicted fo r robbery and who th en during the trial

asked the court to convict her of grand larceny for taki ng money and prescrip tion pills valued at well over $200 from her quadriplegi c friend. The victim was confined to a wheelchair or to bed because of his paralysis be low his neck, and, therefore, was physically una ble to stop appellant in any way. There can be no question that appellant invited the trial judge to come to the erroneous

conclusion that the tr ial court should find appell ant guilty of grand larceny. At trial, when asked by the trial court whether appellant was guilty of “grand larceny, gr and larceny from the person, or- 14 - is it robbery,” appellant’s counsel responded, “T he argument would be larceny.” When then asked by the trial court if appellant was guilty of grand larceny, appell ant’s counsel responded, “They prove value with the cash. So yes. I w ould say that they have met the burden for grand larceny.” These statements were in response to questions from the trial judge, and the majority says that trial counsel was simply “acquiescing” in or “conceding” these points of law. I do not quarrel with this assessment and would not base my conclusion that trial counsel invited error solely on these statements in response to the court. However, at the end of the trial in a renewe d motion to strike the evidence, appellant’s

trial counsel then directly asked the court to convict his client of grand larceny – stating, “I’d ask for the charge to be dropped down to grand larce ny.” This statement by appellant’s counsel is a

clear invitation to the trial court to make an error of law 6 by finding appellant guilty of a crime

that was not a lesser-in cluded offense of the crime original ly charged in the indictment – robbery. This direct request to the court to take this action is very different than – and significantly more serious from – failing to object to what the trial court ruled or in acquiescing in or conceding a point in response to questions fr om the court. In fact, the record demonstrates that trial counsel was so pleased that the tria l court granted his request to find the defendant guilty of grand larceny that he told the court, “[W]e would be willing to waive presentence report and do sentencing today.”

6 During the renewed motion to strike, counsel for appellant’s final substantive statement to the trial court was a direct request to find a ppellant guilty of grand larceny. Because appellant knew at that time that she was not indicted fo r grand larceny and because appellant asked the court to convict her of grand larceny, instead of robbery (for which sh e was indicted), it was incumbent on appellant to ensure that the convi ction she requested was proper under Virginia law. Thus, appellant invited th e erroneous conviction below.- 15 - IN HER MOTION TO SET ASIDE THE VERD ICT AND ON APPEAL, APPELLANT SEEKS TO TAKE ADVANTAGE OF THE SITUATIO N CREATED BY HER INVITED ERROR While actual prejudice – either to the opposing party or to the trial court – has never been a requirement of the in vited error doctrine, 7 Rowe does prohibit a party from attempting “to take advantage of the situation cr eated by his own wrong.” Id. at 502, 675 S.E.2d at 164. In her motion to set aside the verdict, appellant argued that the trial court must vacate its prior ruling and find appellant guilty of petit larceny – a misdemeanor. Specifically, appellant argued that she could not be convicted of robbery becau se the Commonwealth fa iled “to prove beyond a reasonable doubt that the taking of property was accomplished through violence, force, or intimidation.” In addition, appe llant argued that she could not be convicted of grand larceny because “[g]rand larceny is not a lesser included offe nse to the original charge of robbery that the

Defendant stood accused of.” The record reflects th at the trial court convicted appellant of grand larceny after appellant asked the court to make that very finding. Appellant la ter argued that she may now only be convicted of the misdemeanor of petit larceny. This scenario is what the Supreme Court in Rowe seemingly wished to avoid. While it is not clear from the record whether appellant’s actions were done in good fa ith or bad faith, Supreme Court precedent from its decision in Rowe prohibited appellant from seeking to take advantage of the wrong decision

7 The majority opinion rejects an argument advanced by the Commonwealth that the trial judge engaged in “some sort of judicial gra ce” when it convicted appellant of grand larceny instead of robbery. The majority states that “[n]ot hing in the record suggests that the trial court’s decision to strike the evidence of robbery was based on anything other than the Commonwealth’s failure to prove the necessary element of a ta king by violence.” However, it is entirely speculative to know with any certa inty what would have happened below if appellant’s counsel had not directly asked the court to convict her of grand larceny. Thus, despite the majority’s and the Commonwealth’s assertions to the contrary, it is simply not possible to know what the trial court would have concluded if appellan t had not invited the error below.- 16 - she invited. For these reasons, I cannot join the majority’s opini on – and also believe that it may well encourage mischief in future cases, even if no mischief was intende d by trial counsel here. 8

APPELLANT HAS APPROBATED AND REPROBATED BY TAKING MUTUALLY

CONTRADICTORY POSITIONS OF LAW “IN THE COURSE OF LITIGATION”

In addition, appellant has approbated and reprobated by taking successive positions “in the course of litigation” th at are mutually contradictory, wh ich Rowe pr ohibits at any point in the course of litigation – whether still in th e trial court or on appeal. Appellant’s request at trial for the trial court to find her guilty of gr and larceny represents appellant’s first position on the issue. At the motion to set aside the judgment and now ag ain on appeal, appellan t has adopted a second position of law – that a conviction for grand lar ceny would be inappropriate because it was not a lesser-included offense of the charge under which appellant was indicted. These two positions of law are mutually exclusive and contradictory. Thus, the invited error doctrine bars appellant from challenging her conviction for grand larcen y, as appellant’s approbation and reprobation waived any objection to such error below when she specifically invited the erroneous decision about which she later complains – and then at th e hearing on the motion to set aside the verdict told the trial judge that “we never made a request to have her found guilty of grand larceny.”

THE MAJORITY OPINION’S FOCUS ON TH E TIMELINESS OF AP PELLANT’S MOTION

IN THE TRIAL COURT DOES NOT RECOGN IZE THE FACT THAT APPELLANT HAS NEVERTHELESS VIOLATED THE BASI C PROHIBITIONS SET FORTH IN ROWE The majority opinion concludes, “By filing the motion to set aside the verdict, appellant timely made her position clear that grand larceny is not a lesser-included offense of robbery.”

8 Interestingly, at the hearing on the motion to set aside the verdict, appellant’s trial counsel argued to the tria l court, “If the Court will recall, we never made a request to have her found guilty of grand larceny. We just kept usin g the term larceny.” Counsel goes on to state that the defense “never specifically brought out in the argument to have this found grand larceny.” At trial, however, as noted throughout this dissent, trial couns el specifically stated, “I’d ask for the charge to be dropped down to grand larceny” during c ounsel’s renewed motion to strike the evidence, which was his last substan tive statement to the trial court before the trial judge ruled, finding appellant guilty of grand larceny.- 17 - This conclusion ignores the fact that appellan t – in her motion to set aside the verdict – approbated and reprobated by challenging the ap propriateness of a conviction she directly requested. In Rowe, a case that involved simila r facts to the present case, the Supreme Court

held that defense counsel invited error when he urged the trial court to find his client guilty of assault and battery of a law enforcement officer because that charge is not a lesser-included offense of the indicted offense of attempted capital murder. In the present case, the trial court’s adoption of an invalid legal theo ry that appellant herself reques ted was also invited error. To conclude, as the majority does, that a pa rty may seek to correct or “undo” in a post-trial motion an error she has actually invite d ignores the conclusion of the Supreme Court in Rowe that “[a] party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each ot her or mutually contradictory.” Id. at 502, 675 S.E.2d at 164 (emphasis added). While the majority opinion is cer tainly correct that appellant timely filed her motion to set aside the verdict, the Supreme Court’s decision in Rowe still prohibited appellant from taking a new position of law that was “inconsistent” with and “mutually contradictory” to her previously adopted position. Id. See also Matthews v. Matthews, 277 Va. 522, 528, 675 S.E.2d 157, 160 (2009) (“The prohibition against approbation and reprobation forces a litigant to elect a particular position, and confines a litigant to the position that she first adopted.”). While trial counsel may have changed his position while the matter was still in the bosom of the trial court, he did so nearly two months after he directly requested the trial court to convict his client of grand larceny. The trial court – to whom the Commonwealth vigorously argued i nvited error at the hearing on the motion to set aside the

verdict – denied the motion and was in a better position to assess motives than we can from a cold record on appeal. For all those reasons, I must conclude that ap pellant’s adoption of a mutually contradictory position of law at the po st-trial motion hearing, which was still “in the- 18 - course of litigation,” foreclosed her ability to challenge her gr and larceny conviction on such grounds.

KING AND CREAMER SUPPORT THE APPLICATION OF THE INVITED ERROR DOCTRINE The majority opinion relies on King v. Commonwealth, 264 Va. 576, 570 S.E.2d 863 (2002), to conclude that the inv ited error doctrine does not apply in a situation where a litigant has given the trial court “the oppor tunity to hear additional argu ment and change his decision on the issue.” The majority’s relia nce on King is misplaced, as King did not involve invited error, which the Supreme Court makes clear. The actu al issue in King was whether the defendant’s initial objection at the motion to strike on the ch arge of firing into an occupied dwelling was sufficient to preserve his assigne d error on appeal when he late r failed to object to a jury instruction on that same point of law. Id. at 580-81, 570 S.E.2d at 865. The Court concluded, “The undeniable purpose of [this section] is to relieve counsel of the bur den of making repeated further objections to each subseque nt action of the trial court that applies or implements a prior ruling to which an objection has already been noted.” Id. at 581, 570 S.E.2d at 866. Thus, unlike in the present case, there was no invited error in King. In fact, the Supreme Court only mentions invited error one time in its opinion to respond to an argument advanced by the

Commonwealth that defense counsel’s failure to object later to a jury instruction on that same

issue of law was an invitation to the court to make additional e rror. Id. at 581-82, 570 S.E.2d at 866. The Supreme Court rejected the argument that counsel needs to continue to make objections after having already clea rly raised his objection with th e court. Because the Supreme Court in King dealt with not having to make repeated objections (and not with the actual question of invited e rror that is before us here), it is inco rrect to rely on that case to avoid the application of the invited e rror doctrine. The Supreme C ourt’s decision in Rowe, which followed King, makes clear that invited error in a cas e like this one should result in affirmance.- 19 - The majority opinion also fails to actual ly distinguish Creamer v. Commonwealth, 64 Va. App. 185, 767 S.E.2d 226 (2015), a case in whic h this Court applie d the invited error doctrine, even though appella nt raised the issue to the trial court. The is sue in Creamer that is

relevant to the invited error doctrine was the defendant’s post- trial proffer that the defense witness Richard Davis could have given tes timony contradicting th e testimony of Edward Moore, a witness for the Commonw ealth at trial. In response to Creamer’s argument on this issue, this Court concluded that Creamer was ba rred from raising that issue on appeal. This

Court stated: Finally, to the extent appellant pr offered post-trial that Davis could have given testimony “contradicti ng Moore’s testimony at trial” that he had returned to the hom e often during the lease period, appellant may not challenge that point on appeal . Appellant specifically stated at trial th at he would not object to the Commonwealth’s request “to prohibi t [Davis] from testifying for impeachment of the Commonwealth ’s witnesses, whose testimony [Davis] heard [while he was still a defendant].” Id. at 203, 767 S.E.2d at 234 (emphasis added). This Court concluded that Creamer could not “approbate and reprobate by taking successive pos itions in the course of litigation,” having already stated at trial that he would not object to the Commonwealth’s request to prohibit Davis from testifying for impeachment of the Commonwealth ’s witnesses. Id. In both this case and in Creamer, the defendant took one position at trial and a second, inconsistent position at a post-trial hearing and on appeal . Finding the Supreme Court’s decision in Rowe highly instructive and relying on this Court’s treatment of invited error in Creamer, I must conclude that appellant’s inconsistent positions regarding the gr and larceny charge also warrant the application of the invited error doctrine, ev en though – like the appellant in Cr eamer – she raised the issue to

the trial court in a post-trial motion.- 20 - CONCLUSION In summary, appellant invited the very error about which she later complains. In the post-trial motion and on appeal, appe llant has continued to attempt to take advantage of the situation created by her own request at trial that the charge “be dropped down to grand larceny” by asking nearly two months later for her felony grand la rceny conviction to be re duced to a misdemeanor conviction of petit larceny. Appellant takes two inconsistent positions of law over the course of the litigation that are mutually contradictory, and, therefore appellant has approbated and reprobated in a manner prohibited by the Supreme Court in Rowe an d by this Court in Creamer. Therefore, I would apply the inv ited error doctrine, deny appellant’s request to reverse on appeal,

and affirm the trial court. For th ese reasons, I respectfully dissent.