# VIRGINIA:**~the.f~c~o/r~ke/dcdthe.f~C~f?lJ~inthe**

### Cit:yo/~on Friday 

### the 27th 

## dayO/ June, 2014.

Robert KingVia, Appellant,

against RecordNo. 131574 Court ofAppeals No. 1759-12 1 Commonwealth ofVirginia, Appel
Upon an appeal froma judgment renderedbythe Court ofAppeals ofVirg a.
Upon considerationof the record, pleadings, briefs and argument of counsel, Court is of the opinion that there is error in Court ofAppeals' judgment and, for the reasons statedbelow,

we will reverse the judgment of the Court ofAppeals. On September II, 2010, three masked gunmen entered Frank Auche's residence, detained and threatenedthe rsons in t residence, and robbedAuche. When thepolice arrived, the gunmen fled. ood recove near the crime scenematched a DNA profile for Reginald Jones. When Jones was arrested, he identifi Robert KingVia, Jr., Samuel Sanchez and a person known as "Carl" as participants in crime. Via was arrest and indicted for crimes associated with the invasion ofAuche's home. Via denied any involvement with the crimes but admittedhe knew Jones, Sanchez and Carl Gentline, the person known as "Carl." No forensic evidence connectedVia to the cr Sanchez and Gentline both testif at Via's trial. Sanchez testified that he hadentered a plea agreement inwhi he agreedto provi truthful testimony as to any co-defendants whomight betr Gentlinemainta that, while he drove the getaway car, he did so under ss because was afraid of the otherparticipants, who were armed. The Commonwealth never charged Gentline with any crimes relating to the invasion of Auche's home. Both Sanchez and Gentline testifiedthat a partic in the home invas
a proffe the following jury instruction, Jury Instruction A, regarding Gentline's testimony: Carl Genteline [sic] has testifiedthat was an accomplice the commission of the crimes charged inthe ctments. While youmay find your verdict upon his uncorroborated testimony, you shou consider s testimonywith care and you are cautioned as to the danger of convict the defendant upon the uncorroborated testimony of an accomplice. Nevertheless, if you are satisfied the evidence of t guilt of the defendant beyond a reasonable doubt, the fendant may convictedupon the uncorroborated evidence of an accomplice. Although the trial court ed a similar instruction rega ng Sanchez' testimony, it refused Jury InstructionA cause the court d "not th k Mr. Gentlinemeets the test of an accomplice." A jury convi Via of all crimes charged, except one, and sentenced himto 128 years and one day imprisonment. Via appealed his convictions to the Court of Appeals. As relevant here, Via asserted that the trial court erred in refusing Jury Instruction A. Although the question of Gentline's status as
an accomplice was inherent this assignment of error, t Court of Appeals didnot address that issue directly. Rather, the Court of Is, in

### a r curiamopinion, affirmed trial court's re al of proposedjuryinst on, stating that

2[e]ven if Gentline was considered an accomplice to the crimes, his testimonywas corroboratedby that of Sanchez, who admitted that he, appellant, and Jones were the three men who enteredAuche's home and threatened those inside at gunpoint.
Via v. Commonwealth, RecordNo. 1759-12-1, sl op. at 3 (May 22, 2013)(footnote omitted). Via appealed from the Court ofAppeals' judgment, asserting, inter alia, that the Court ofAppeals erred in affirming the trial court's refusal of Jury InstructionAand in ruling that Sanchez' testimony corroborated Gentline's testimony. The parties do not dispute that Jury InstructionAcorrectly states the law and shouldbe given if a witness whose testimony is at issue is an accomplice and if his or her testimony is uncorroborated. Jones v. Commonwealth, 111 Va. 862, 868, 69 S.E. 953, 955 (1911). The test for whether a witness is an accomplice is "whetherhe couldbe indicted the same offense." Guthrie v. Commonwealth, 171 Va. 461, 469, 198 S.E. 481, 484 (1938). Whether accomplice testimony is corroborated is subject to the long establishedprinciple that accomplice testimony cannotbe corroboratedby the testimony of another accomplice. Jones, 111 Va. at 868, 69 S.E. at 955. In this case, Gentline qualifi as an accomplice because, by his own admission, he drove the getaway car and, therefore, could have been indicted for the same offense. Grant v. Commonwealth, 216 Va. 166, 168-69, 217 S.E.2d 806, 808 (1975)(finding driver of getaway car a principal the second degree). Neither the ct that he was not charged th any cr relating to the home invasion, nor the Commonwealth's claimthat he lacked criminal intent are relevant to determining whether Gentline
3couldhave been indicted for the offenses associatedwith the home invasion. Gentline's testimony, therefore, required corroboration. However, none of the dence producedby the Commonwealth corroborated Gentline's testimony. Furthermore, contraryto the Court ofAppeals' holding, Sanchez' testimony could not corroborate Gentline's testimonybecause Sanchez was also an accomplice. Jones, III Va. at 868, 69 S.E. at 955. Because Gentline was an accomplice and his testimonywas not corroborated, the trial court abused its discretion in refusing Jury Instruct Aandthe Court ofAppeals' judgment affirming the t al court's refusal to grant Jury InstructionAwas error. Accordingly, the judgment of the Court ofAppeals is reversed, the convictions and sentences vacated, and the case is remanded for further prosecution as the Commonwealthmay see fit. JusticeMillette took no part in the consideration of this case.This order shallbe published inthe Virginia Reports and shall be certifiedto the Court of Appeals of Virginia andto the Ci Court of the City ofHampton.

ACopy,

Clerk Teste:

4