COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bray and Bumgardner 

Argued at Norfolk, Virginia 

GREGORY MAZYCK, S/K/A 

 GREGORY A. MAZYCK 

 MEMORANDUM OPINION* BY 

v. Record No. 2169-97-1 JUDGE RICHARD S. BRAY 

 JULY 21, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John E. Clarkson, Judge 

 Harry Dennis Harmon, Jr., for appellant. 

 Thomas D. Bagwell, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 A jury convicted Gregory A. Mazyck (defendant) for first 

degree murder and conspiracy to commit robbery. On appeal, 

defendant complains that the trial court erroneously refused to 

instruct the jury on the offense of accessory after the fact. We 

disagree and affirm the convictions. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to 

disposition of the appeal. "'In determining whether to instruct 

the jury on a lesser-included offense, the evidence must be 

viewed in the light most favorable to the accused's theory of the 

case.'" Hunt v. Commonwealth, 25 Va. App. 395, 400, 488 S.E.2d 

672, 674 (1997) (citation omitted). 

 

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

designated for publication. 
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 At trial, the Commonwealth established that defendant, 

together with several armed co-conspirators, entered the 

residence of James H. Robinson, III, intending to commit robbery. 

 Once inside, a struggle ensued between a perpetrator and Elijah 

Thornton, III, a guest in the home. As a result, several of the 

assailants, including defendant, fired weapons, mortally wounding 

Thornton. 

 Defendant testified that he had been "drinking," "getting 

high," and "riding around" with friends immediately prior to the 

offenses. He recalled that he "kind of doz[ed] off" and was 

awakened by three companions "coming into the car," "yelling" and 

"panicking." When defendant inquired, "what was going on," one 

among the group, Joseph Williams, answered, "the guy was grabbing 

for the gun, and he almost took the gun from Shy [co-conspirator 

Shawn Johnson], so he just fired." Defendant did not understand 

Williams' response but, "nervous and scared," "just sat there 

. . . and shut up." The men subsequently abandoned the vehicle, 

and defendant later gave Timothy Hines, also a perpetrator, "cab 

money home." 

 At the conclusion of the evidence, defendant proposed two 

jury instructions embracing the offense of accessory after the 

fact, though he had not been indicted for such crime, both of 

which were refused by the court. On appeal, defendant argues 

that accessory after the fact is a lesser-included offense 

supported by the evidence. 

 "We are bound by the principle that the 
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accused is entitled, on request, to have the 

jury instructed on a lesser included offense 

that is supported by more than a 'scintilla 

of evidence' in the record." Thus, where 

credible evidence exists that would support 

giving the jury an instruction on a 

particular theory of the case, the trial 

court's failure to give the instruction 

constitutes reversible error. 

Hunt, 25 Va. App. at 399-400, 488 S.E.2d at 674 (citations 

omitted). Therefore, assuming, without deciding, that defendant 

was entitled to the instruction in issue as a lesser-included 

offense, or otherwise, see Code § 19.2-286; Rule 3A:17(c), 

credible evidence must support such culpability.1

 "The definition of an accessory after the fact is one of 

ancient origin . . . [requiring that:] '1. The felony must be 

completed; 2. [Defendant] must know that the felon is guilty; 

3. [Defendant] must receive, relieve, comfort or assist him.'" 

Manley v. Commonwealth, 222 Va. 642, 644-45, 283 S.E.2d 207, 208 

(1981) (quoting Wren v. Commonwealth, 67 Va. (26 Gratt.) 952, 956 

(1875)). Defendant testified that he was sleeping when the men 

returned to the vehicle and did not comprehend Williams' comment 

that "the guy . . . almost took the gun from Shy, so he just 

 

 1A panel of this Court recently concluded in Dalton v. 

Commonwealth, 27 Va. App. 381, 391, 499 S.E.2d 22, 27 (1998), 

that "[a]lthough the crime of being an 'accessory after the fact' 

is technically not a lesser-included offense of any other crime, 

. . . a criminal defendant is entitled to an instruction on this 

crime, if such an instruction is warranted by the evidence, based 

upon the jury's statutory power under Code § 19.2-286." Dalton

will be further considered en banc but, because we find the 

instant evidence insufficient to support the instruction, the 

instant decision need not await its resolution. 
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fired." Rather than make inquiry, he elected to "shut up." 

Thus, defendant was involved with the principal actors following 

the offenses without knowledge of the predicate felony or their 

participation in it and, therefore, could not have been an 

accessory after the fact. 

 Accordingly, the court properly refused to instruct the jury 

on the offense, and we affirm the convictions. 

 Affirmed.