VIRGINIA: 

~the.f~c~o/r~ke/dcdthe.f~C~f?lJ~inthe 

Cit:yo/~on Friday the 27th dayO/ June, 2014. 

Robert King 	Via, Appellant, 

against 	 Record No. 131574 


Court of Appeals No. 1759-12 1 


Commonwealth of Virginia, 	 Appel 

Upon an appeal from a 

judgment rendered by the Court 

of Appeals of Virg a. 

Upon consideration of the record, pleadings, briefs and 

argument of counsel, Court is of the opinion that there is error 

in Court of Appeals' judgment and, for the reasons stated below, 

we will reverse the judgment of the Court of Appeals. 

On September II, 2010, three masked gunmen entered Frank 

Auche's residence, detained and threatened the rsons in t 

residence, and robbed Auche. When the police arrived, the gunmen 

fled. ood recove near the crime scene matched a DNA profile 

for Reginald Jones. When Jones was arrested, he identifi Robert 

King Via, Jr., Samuel Sanchez and a person known as "Carl" as 

participants in crime. Via was arrest and indicted for crimes 

associated with the invasion of Auche's home. Via denied any 

involvement with the crimes but admitted he knew Jones, Sanchez and 

Carl Gentline, the person known as "Carl." No forensic evidence 

connected Via to the cr 

Sanchez and Gentline both testif at Via's trial. Sanchez 

testified that he had entered a plea agreement in whi he agreed to 

provi truthful testimony as to any co-defendants who might be 
tr Gentline mainta that, while he drove the getaway car, he 

did so under ss because was afraid of the other participants, 

who were armed. The Commonwealth never charged Gentline with any 

crimes relating to the invasion of Auche's home. Both Sanchez and 

Gentline testified that a partic in the home invas 

a proffe the following jury instruction, Jury Instruction 

A, regarding Gentline's testimony: 

Carl Genteline [sic] has testified that was an 

accomplice the commission of the crimes charged in the 

ctments. While you may find your verdict upon his 

uncorroborated testimony, you shou consider s 

testimony with 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 convicted upon the uncorroborated evidence of an 

accomplice. 

Although the trial court ed a similar instruction rega ng 

Sanchez' testimony, it refused Jury Instruction A cause the court 

d "not th k Mr. Gentline meets the test of an accomplice." A 

jury convi Via of all crimes charged, except one, and sentenced 

him to 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 did not address that issue directly. Rather, the Court of 

Is, in a r curiam opinion, affirmed trial court's re al 

of proposed jury inst on, stating that 

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[e]ven if Gentline was considered an accomplice to the 

crimes, his testimony was corroborated by that of 

Sanchez, who admitted that he, appellant, and Jones were 

the three men who entered Auche's home and threatened 

those inside at gunpoint. 

Via v. Commonwealth, Record No. 1759-12-1, sl op. at 3 (May 22, 

2013) (footnote omitted). Via appealed from the Court of Appeals' 

judgment, asserting, inter alia, that the Court of Appeals erred in 

affirming the trial court's refusal of Jury Instruction A and in 

ruling that Sanchez' testimony corroborated Gentline's testimony. 

The parties do not dispute that Jury Instruction A correctly 

states the law and should be 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 

"whether he could be 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 

established principle that accomplice testimony cannot be 

corroborated by 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 claim that he 

lacked criminal intent are relevant to determining whether Gentline 

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could have been indicted for the offenses associated with the home 

invasion. Gentline's testimony, therefore, required corroboration. 

However, none of the dence produced by the Commonwealth 

corroborated Gentline's testimony. Furthermore, contrary to the 

Court of Appeals' holding, Sanchez' testimony could not corroborate 

Gentline's testimony because Sanchez was also an accomplice. Jones, 

III Va. at 868, 69 S.E. at 955. Because Gentline was an accomplice 

and his testimony was not corroborated, the trial court abused its 

discretion in refusing Jury Instruct A and the Court of Appeals' 

judgment affirming the t al court's refusal to grant Jury 

Instruction A was error. 

Accordingly, the judgment of the Court of Appeals is reversed, 

the convictions and sentences vacated, and the case is remanded for 

further prosecution as the Commonwealth may see fit. 

Justice Millette took no part in the consideration of this 

case. 

This order shall be published in the Virginia Reports and shall 

be certified to the Court of Appeals of Virginia and to the Ci 

Court of the City of Hampton. 

A Copy, 

Clerk 

Teste: 

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