COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

JERMAINE B. JONES 

 MEMORANDUM OPINION* BY 

v. Record No. 1947-95-1 JUDGE RICHARD S. BRAY 

 NOVEMBER 5, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 Timothy S. Fisher (Overman, Cowardin & 

Martin, P.L.C., on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Jermaine B. Jones (defendant) was convicted by a jury for 

second degree murder and the related use of a firearm, violations 

of Code §§ 18.2-32 and 18.2-53.1, respectively. On appeal, he 

complains that the trial court improperly instructed the jury 

with respect to inconsistent verdicts and erroneously denied his 

attendant motion for a mistrial. Although we agree that the 

disputed instruction was not correct, the error was harmless. 

Accordingly, we affirm the convictions. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to a resolution of the issues 

on appeal. 

 The relevant procedural history is uncontroverted. The 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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trial court first properly instructed the jury that conviction 

for a violation of Code § 18.2-53.1 necessitated proof that a 

firearm was used in the commission or attempted commission of 

murder. However, following closing arguments, the court further 

instructed the jury, sua sponte, that "[i]f [you] determine that 

the Defendant is guilty of voluntary manslaughter, you may also 

find [him] guilty of use of a firearm during the commission of a 

murder." Although such inconsistent verdicts do not provide 

grounds for reversal on appeal, see Wolfe v. Commonwealth, 6 Va. 

App. 640, 649-50, 371 S.E.2d 314, 319-20 (1988), the trial court 

has an "affirmative duty" to properly instruct a jury on a 

"principle of law . . . vital to a defendant." Johnson v. 

Commonwealth, 20 Va. App. 547, 553-54, 458 S.E.2d 599, 602 (1995) 

(quoting Jiminez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 

678, 681 (1991)). Nevertheless, we find that the erroneous 

instruction was harmless in this instance.1 

 "The United States Supreme Court has repeatedly stated that 

harmless error analysis is appropriate in the context of improper 

jury instructions." Kil v. Commonwealth, 12 Va. App. 802, 812, 

407 S.E.2d 674, 679-80 (1991). 

 In Virginia, non-constitutional error is 

harmless "[w]hen it plainly appears from the 

record and the evidence given at the trial 

that the parties have had a fair trial on the 

merits and substantial justice has been 

reached." Code § 8.01-678 (emphasis added). 

 

 1In addressing this issue, we assume, without deciding, that 

defendant's mistrial motion was timely. See Cheng v. 

Commonwealth, 240 Va. 26, 393 S.E.2d 599 (1990). 
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 "[A] fair trial on the merits and 

substantial justice" are not achieved if an 

error at trial has affected the verdict. 

Consequently, under Code § 8.01-678, a 

criminal conviction must be reversed unless 

"it plainly appears from the record and the 

evidence given at the trial that" the error 

did not affect the verdict. An error does 

not affect a verdict if a reviewing court can 

conclude, without usurping the jury's 

fact-finding function, that, had the error 

not occurred, the verdict would have been the 

same. 

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 

911 (1991) (en banc). Whether an error at trial has affected the 

verdict necessarily depends on the circumstances of each case. 

Id. at 1009, 407 S.E.2d at 913. 

 Here, notwithstanding the erroneous instruction, the jury 

convicted defendant of a requisite predicate felony, second 

degree murder, thereby avoiding an inconsistent verdict. We, 

therefore, can conclude, without usurping the jury's fact-finding 

function, that the verdict would have been unchanged had the 

error not occurred. See Smoot v. Commonwealth, 18 Va. App. 562, 

566-68, 445 S.E.2d 688, 691 (1994) (although jury instruction 

omitted essential element of crime, error harmless because 

evidence of such circumstance was uncontradicted in the record); 

cf. LeVasseur v. Commonwealth, 225 Va. 564, 592 n.3, 304 S.E.2d 

644, 659 n.3 (1983), cert. denied, 464 U.S. 1063 (1984) (failure 

to instruct jury on second degree murder harmless because 

conviction of capital murder manifested a rejection of second 

degree murder). 
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 Defendant next contends that the action and attendant 

remarks of the trial court suggested to the jury that defense 

counsel had presented either an untruthful or erroneous argument, 

inviting prejudice to defendant's cause. However, when defendant 

requested a mistrial, he addressed only the inconsistent verdict 

implications of the trial court's error, without mention of any 

incidental prejudice. Defendant first raised this issue to the 

court in additional argument several months after trial. Thus, 

defendant did not afford the trial judge an opportunity to remedy 

any error in a timely fashion. Because Rule 5A:18 precludes our 

review of issues not properly raised before the trial court, save 

for good cause or to attain the ends of justice,2

 this argument 

was not preserved for appellate review. See, e.g., Deal v. 

Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992). 

 Accordingly, we affirm the convictions. 

 Affirmed.

 

 2Defendant has not argued either the good cause or the ends 

of justice exceptions to Rule 5A:18, and we do not find either 

applicable in this instance.