COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Barrow*, Benton, 

 Koontz, Willis, Elder, Bray and Fitzpatrick 

Argued at Richmond, Virginia 

LEVON JOHNSON 

 OPINION BY 

v. Record No. 0408-93-1 JUDGE JAMES W. BENTON, JR. 

 JULY 5, 1995 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Kenneth N. Whitehurst, Jr., Judge 

 Melinda R. Glaubke, Assistant Public Defender 

 (Office of the Public Defender, on brief), 

 for appellant. 

 Richard B. Smith, Assistant Attorney General 

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

 brief), for appellee. 

 Levon Johnson was convicted in a jury trial of attempted 

unlawful wounding and use of a firearm in the commission of 

attempted malicious wounding. Johnson contends the firearm 

conviction must be reversed because the trial judge in response 

to a question from the jury, failed to inform the jury of the 

applicable law. In an unpublished opinion, a panel of this 

Court, with one judge dissenting, held that Johnson had not 

properly preserved the issue for appeal and affirmed the 

convictions. See Johnson v. Commonwealth, No. 0408-93-1 (Va. Ct. 

App. Nov. 1, 1994). The Court granted a rehearing en banc. For 

 

 *Judge Bernard G. Barrow participated in the hearing and 

decision of this case and joined in the opinion prior to his 

death. 
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the reasons that follow, we reverse Johnson's conviction for use 

of the firearm. 

 I. 

 Johnson was indicted on charges of attempted malicious 

wounding in violation of Code §§ 18.2-26 and 18.2-51, and use of 

a firearm in the attempted commission of malicious wounding in 

violation of Code § 18.2-53.1. At the conclusion of the 

evidence, the trial judge instructed the jury regarding the 

elements of attempted malicious wounding, attempted unlawful 

wounding, and attempted assault and battery. The trial judge 

also instructed the jury as follows on the elements of the crime 

of use of a firearm in the attempted commission of malicious 

wounding: 

 1. That the defendant used a firearm; and 

 2. That the use was while committing or 

attempting to commit malicious wounding. 

 During its deliberations, the jury sent the following 

written inquiry to the trial judge: "If the defendant is guilty 

of attempted unlawful wounding, can he also be guilty of use of a 

firearm in the commission of a felony? The instructions provided 

to us do not address this." After the trial judge read the 

inquiry to counsel, the following exchange occurred: 

 JUDGE: I think it's obvious the answer to 

that is, yes, they can find him guilty of use 

of a firearm in the commission of a felony as 

well as an unlawful wounding. That's a 

felony charge. 

 Do you-all have anything further on that? 
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 PROSECUTOR: No, Your Honor. It sounds 

logical. 

 DEFENSE COUNSEL: Well, in [Code §] 

 18.2-53.1, it is a statute. It just says 

malicious. 

* * * * * * * 

 PROSECUTOR: It says malicious wounding as 

defined in [Code §] 18.2-51. If we were to 

read that in the non-inclusive, then we would 

have to exclude aggravated malicious 

wounding. So, therefore, the Commonwealth's 

opinion is that malicious is encompassed in 

all of [Code §] 18.2-51 because otherwise, if 

the court were to find as a fact that 

unlawful wounding is excluded, it would also 

have to find that aggravated malicious 

wounding is excluded. 

* * * * * * * 

 DEFENSE COUNSEL: No. Aggravated malicious 

wounding is specifically mentioned [Code §] 

18.2-53.1. It says, As defined in [Code §] 

18.2-51.2, aggravated malicious wounding as 

defined. 

 JUDGE: It would seem to me it does not fall 

within the statute. It has to be while 

attempting murder, rape, robbery, burglary or 

malicious wounding as defined in [Code §] 

18.2-51. It does not include unlawful 

wounding. 

 PROSECUTOR: This is the first time that I 

ever come across anything like that because 

we have -- that would affect it also, Your 

Honor. 

 DEFENSE COUNSEL: But I also think that 

that's probably the reason that the 

instruction is worded the way it is. It 

specifically says . . . the delineated 

felony. 

 PROSECUTOR: I would still maintain that 

malicious wounding as defined in [Code §] 

18.2-51 also includes unlawful. 
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* * * * * * * 

 JUDGE: [W]e have two separate charges here; 

and I think rather than answering this 

question yes or no I should tell the jury 

that we have two separate charges, one of 

which is malicious wounding and one of which 

is use of a firearm in the commission of a 

felony, and they have to make a decision on 

each one individually; and they can make that 

decision either way they please. 

* * * * * * * 

 DEFENSE COUNSEL: Well, the only thing -- if 

that's what you're going to tell them, but 

that the instructions stand as they are? 

 JUDGE: Oh, yeah. I'm not going to change 

the instructions. 

 DEFENSE COUNSEL: I mean the elements of the 

offense stand as they are stated in the 

instructions. 

 JUDGE: Um-hum. 

 After the jury was assembled in the courtroom, the judge 

instructed the jury as follows: 

 Ladies and gentlemen, you've submitted a 

question that reads: If the defendant is 

guilty of attempted unlawful wounding, can he 

also be guilty of use of a firearm in the 

commission of a felony? And the answer to 

that I'm afraid is going to be up to you. 

 You have two separate charges. You have 

the instructions that are before the court. 

You have the two separate charges, and it's 

up to you to make that decision on each of 

the charges. 

 I will send you back with that thought. 

You have two separate charges, and it's up to 

you-all to make that decision. 

 The jury returned a verdict finding Johnson guilty of 
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attempted unlawful wounding and guilty of use of a firearm in the 

commission of a felony "as charged in the indictment." At 

Johnson's sentencing hearing, defense counsel made a motion to 

set aside the verdict on the ground that the trial judge failed 

to correctly state the law when responding to the jury's inquiry. 

 She argued that the judge should have instructed the jury that 

Johnson could not be convicted of the firearm charge if the jury 

found him guilty of attempted unlawful wounding, rather than 

attempted malicious wounding as charged in the indictment. The 

trial judge denied the motion. 

 II. 

 Code § 8.01-384(A) reads in pertinent part as follows: 

 Formal exceptions to rulings or orders of the 

court shall be unnecessary; but for all 

purposes for which an exception has 

heretofore been necessary, it shall be 

sufficient that a party, at the time the 

ruling or order of the court is made or 

sought, makes known to the court the action 

which he desires the court to take or his 

objections to the action of the court and his 

grounds therefor; . . . . No party, after 

having made an objection or motion known to 

the court, shall be required to make such 

objection or motion again in order to 

preserve his right to appeal, challenge, or 

move for reconsideration of, a ruling, order, 

or action of the court. No party shall be 

deemed to have agreed to, or acquiesced in, 

any written order of a trial court so as to 

forfeit his right to contest such order on 

appeal except by express written agreement in 

his endorsement of the order. Arguments made 

at trial via written pleading, memorandum, 

recital of objections in a final order, oral 

argument reduced to transcript, or agreed 

written statements of facts shall, unless 

expressly withdrawn or waived, be deemed 

preserved therein for assertion on appeal. 
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 The primary function of the contemporaneous objection rule 

"is to alert the trial judge to possible error so that the judge 

may consider the issue intelligently and take any corrective 

actions necessary to avoid unnecessary appeals, reversals and 

mistrials." Martin v. Commonwealth, 13 Va. App. 524, 530, 414 

S.E.2d 401, 404 (1992) (citing Campbell v. Commonwealth, 12 Va. 

App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc)). 

 After reading the inquiry, the trial judge stated "it's 

obvious the answer to that is, yes, they can find him guilty of 

use of a firearm in the commission of . . . unlawful wounding." 

Defense counsel responded, "Well, in 18.2-53.1 . . . [i]t just 

says malicious." In the discussion that followed, defense 

counsel never waivered from that position. The trial judge, 

however, ruled against her. "Requiring [defense counsel] to 

'object' after this refusal would, in effect, recreate the 

requirement of noting an exception to a final adverse ruling of 

the trial judge. As we stated in Martinez v. Commonwealth, 10 

Va. App. 664, 668, 395 S.E.2d 467, 470 (1990), aff'd as modified, 

241 Va. 557, 403 S.E.2d 358 (1991), 'the requirement for an 

exception [has been] eliminated.'" Martin, 13 Va. App. at 530, 

414 S.E.2d at 404. Thus, this issue was properly preserved for 

appeal. 

 III. 

 Even if we were to assume that Johnson's counsel failed to 

make a timely objection, the failure to make a timely objection 
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will not bar consideration on appeal if good cause exists or if 

the ends of justice require consideration of the issue. Rule 

5A:18. See Davis v. Commonwealth, 17 Va. App. 666, 673-74, 440 

S.E.2d 426, 431 (1994); Campbell v. Commonwealth, 14 Va. App. 

988, 989-90, 421 S.E.2d 652, 653 (1992) (en banc), aff'd in part, 

246 Va. 174, 431 S.E.2d 648 (1993). The Supreme Court of 

Virginia has recently and unequivocally reaffirmed the principle 

"that, when a principle of law is vital to a defendant in a 

criminal case, a trial court has an affirmative duty properly to 

instruct a jury about the matter." Jimenez v. Commonwealth, 241 

Va. 244, 250, 402 S.E.2d 678, 681 (1991). That principle applies 

even when an objection has not been stated. See id. at 245-46, 

402 S.E.2d at 678. The trial judge's "imperative duty [to 

properly instruct the jury] . . . is one which can neither be 

evaded nor surrendered." Williams v. Lynchburg Traction & Light 

Co., 142 Va. 425, 432, 128 S.E. 732, 734 (1925). 

 The Code of Virginia contains no statute by which a 

defendant may be convicted of use of a firearm in the commission 

of unlawful wounding. Cf. Code § 18.2-53.1. "[A] violation [of 

Code § 18.2-53.1] occurs only when a firearm is used with respect 

to the [statutorily] specified felonies." Bundy v. Commonwealth, 

220 Va. 485, 488, 259 S.E.2d 826, 828 (1979). 

 The jury's inquiry manifested its concern about an obvious 

void in the instructions. In order to discharge its function 

properly, the jury requested guidance because the instructions 
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were deficient regarding the requirements of the law. The jury's 

inquiry unambiguously informed the trial judge that it was not 

properly instructed. By failing to respond, "No," to the jury's 

inquiry, the trial judge failed to instruct the jury properly. 

As a consequence, the jury returned a verdict that is contrary to 

Code § 18.2-53.1, and "[t]he jury convicted [Johnson] of the nonexistent offense." Bundy, 220 Va. at 488, 359 S.E.2d at 828. 

 For these reasons, we reverse the judgment of conviction for 

the firearm offense and dismiss the indictment. 

 Reversed. 
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MOON, C.J., concurring in part, dissenting in part. 

 I concur in the result reached by the majority; however I 

disagree with the statement that "the issue was properly 

preserved for appeal." Counsel properly raised the same issue in 

the trial court he now raises on appeal when the jury asked its 

question. However, when the trial court ultimately responded to 

that question, defense counsel agreed with the judge's answer. 

This was not the proper way to preserve an issue for appeal. 

 Notwithstanding counsel's agreement with the court's 

actions, the Supreme Court's ruling in Jimenez v. Commonwealth, 

241 Va. 244, 250-51, 402 S.E.2d 678, 681 (1991), requires, in my 

opinion, reversal of the conviction. 

Jimenez held that "when a principle of law is vital to a 

defendant in a criminal case, a trial court has an affirmative 

duty to instruct the jury about the matter," Id. at 250, 402 

S.E.2d at 681, even when no objection is made. Id. at 245-46, 

402 S.E.2d at 678. 

 The jury asked: 

 "If the defendant is guilty of attempted unlawful 

wounding, can he also be guilty of use of a firearm in 

the commission of a felony? The instructions provided 

do not address this." 

 I believe that the jury should have been told categorically 

that if the defendant was found guilty of attempted unlawful 

wounding, he could not be found guilty of use of a firearm in the 

commission of a felony. The jury was told in effect that it 
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could bring back conflicting verdicts. This the jury had the 

power to do, Wolfe v. Commonwealth, 6 Va. App. 640, 649-50, 371 

S.E.2d 314, 319 (1988), but not the right or duty to do. The 

court's answer had the effect of inviting the jury to indulge in 

jury nullification, which is not countenanced in the law of the 

Commonwealth. See Poyner v. Commonwealth, 229 Va. 401, 329 

S.E.2d 815 (1985). 

 As I interpret the jury's question, it probably had already 

determined the defendant was not guilty of attempted malicious 

wounding, but guilty only of unlawful wounding. In such a case, 

it was the jury's clear duty upon being properly instructed to 

find the defendant not guilty of use of a firearm in the 

commission of a felony. 

 Because it appears probable that if the jury's question had 

been answered directly, and in the negative according to the law, 

the defendant would not have been convicted of the felony firearm 

charge, I believe a direct and negative answer to the jury's 

question was "vital to [the] defendant," and for that reason good 

cause exists for not applying the bar of Rule 5A:18. 

 I would reverse. 
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WILLIS, J., with whom Baker and Bray, J.J., join, dissenting. 

 The trial court gave no erroneous instruction. At issue 

here is not the correctness of the trial court's response to the 

jury's question, but rather the manner in which the trial court 

answered that question. 

 The trial court told the jury that they had instructions 

defining the two separate charges on trial and that they were to 

apply the evidence and determine whether either charge had been 

proven. The trial court instructed the jury that they were to 

make a decision on each charge. This instruction was correct. 

It was the duty of the jury to determine the merits of each 

charge separately, based upon the evidence and the court's 

instructions with respect to each charge. The instruction 

required by the majority opinion would have put the trial court 

in the position of participating improperly in the guiltdetermination process. 

 When, after discussion with counsel, the trial court 

announced the response that it intended to give, defense counsel 

asserted no disagreement. Indeed, her response suggests 

acquiescence. Thus, counsel failed to preserve this issue for 

appeal. Rule 5A:18. 

 I perceive no reason to invoke the "ends of justice" 

exception of Rule 5A:18. Johnson deliberately fired a handgun at 

a security guard who was attempting to apprehend him lawfully. 

The evidence of those circumstances would have supported a 
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conviction of attempted malicious wounding. A mere inconsistency 

in the jury's verdicts does not render the verdicts invalid. See

Wolfe v. Commonwealth, 6 Va. App. 640, 647, 371 S.E.2d 314, 318 

(1988). 

 I would affirm the judgment of the trial court.