COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatr ick, Judges Annunz iata and Humphreys Argued at Alex andria, Virginia

HENRY G. PERRY, S/K/A HENRY GARFIE LD PERRY BEY MEMORANDUM OPINION * BY v. Record No. 2409-00-4 JUDGE ROSEMARI E ANNUNZIATA JANUARY 15, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY William T. Newm an, Jr., Judge Matthew T. Foley for appellant. Paul C. Galanides, As sistant Attorn ey General (Randolph A. Beales, Acti ng Attorney General; Leah A. Darron , Assistant Atto rney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Henry Garfield Perry Bey appeal s his conviction of possession of a firearm by a conv icted felon. He alleges that the trial

court erroneou sly: (1) re fused to exclude evid ence not properly disclosed to him; and (2) refused to grant a mist rial where the jury heard evidence of similar crimes wi thout a ca utionary instruction. For the reasons that follow, we affirm his conviction. A. Exclusion of Evidence in Violat ion of Discovery Order Bey contends that the trial cour t erred by allowing the Commonwealth to introduce into evidence an inculpator y statementthat was disclosed the mo rning of trial. We hold that Bey waived this objection. "[W]here an accused unsuccessfully object s to evidence which he considers impr oper and then on his own behalf introduces evidence of the same character, he thereby waives his objection, and we cannot reve rse for allege d error." Hubbard v. Commonwealth , 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992); see also Bynum v. Commonwealth , 28 Va. App. 451, 45 9, 506 S.E.2d 30, 34 (1998). The record, vi ewed in the light mo st favorable to the Commonwealth, see Winckler v. Commonwealth , 32 Va. App. 836, 844, 531 S.E.2d 45, 49 (2000), makes evident that Bey, after objecting to the admission of his statement that he committe d the crime with a .32 caliber gun, asked Detective Carrig on cros s-examination, "[W]hat caliber gu n is that? Carrig respon ded, "[I]t is a silver . . . .32 cali ber revolver." 1 Later, Bey ag ain asked, "What caliber gun is it?" an d Carrig responded, "[ I]t appears to me to be, from the picture, a .32." Because Be y elicited the same evidence that he clai ms should have been excluded, we will not consider his obje ction on appeal. B. Motion for Mistrial Bey appeals th e trial court's denial of his motion for a mistrial on the ground that De tective Carrig's testimony on redirect examination re ferring to Bey as "inv olved in a series of

1 As the parties are familiar with the record, we state only those facts necessary to an understanding of this opinion. - 2 -robberies in Northern Virginia," prejudiced his defens e. The Commonwealth contends that Bey's motion was untimely and that Bey invited the al leged error. We agree. Although Bey promptly objected to this te stimony, he did not move for a mistrial until the prosecutor asked several more questions. Hence, Bey failed to make "the motion [for a mistrial] when the objectiona ble words were spok en." Yeatts v. Commonwealth , 242 Va. 121, 13 7, 410 S.E.2d 25 4, 264 (1991) (internal quot ations and citation s omitted); accord Bennett v. Commonwealth , 29 Va. App. 261, 281, 511 S.E.2d 439, 448-49 (1999). As a result, his motion was untimely, and the trial co urt's denial

was not error. Moreover, the court's denial was prop er because Bey invited the alleged er ror. See Luck v. Commonwealth , 30 Va. App. 36, 46, 515 S.E.2d 325, 329 (1999) (defendant may not invite error and take advantage of that error). The record shows that before Carrig referred to Bey as "involved in a series of robberies in Northern Virginia," Bey, during his cross-examination of Detective Carrig, elicited testimony regarding a robbery he committed in Fairfax Co unty. Bey thus "ope ned the door" to the trial court's admi ssion of evidence of othe r crimes and failed to show that Detect ive Carrig's subsequent statement on redirect examination re quired the trial court to grant a mist rial. See Clark v. Commonwealth , 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979) ("The defendant, having agreed upon th e action taken by the

- 3 -trial court, should no t be allowed to assu me an inconsistent position."); Commonwealth v. Beavers , 150 Va. 33, 142 S.E. 402 (1928) (noting that defendant may not assume inconsistent positions at the trial or appellate level); Luck , 30 Va. App. at 46, 515 S.E.2d at 329 (holding that a criminal defendant may not "approbate and reprobat e –- . . . invite erro r . . . and then to take advantage of th e situation cr eated by his own wrong" (internal quotation omitted)). We thus conclude that the court did not abuse it s discretion in denying Bey's motions for a mistrial. See Bunch v. Commonwealth , 225 Va. 423, 43 8, 304 S.E.2d 271, 279-80 (1983) (h olding that where a de fendant open s the door to a subject by solici ting testimony, the sc ope of examination on that subject is within the tr ial court's soun d discretion). Finally, Bey compla ins on appeal that the judge did not instruct the jury to disregard this port ion of the witness' testimony. Beca use Bey did not re quest such an in struction, he cannot now raise the issue. See Clanton v. Commonwealth , 223 Va. 41, 54, 286 S.E.2d 172, 179 (1982) (holdi ng that it is defense counsel's duty to move for a caut ionary instructio n where such an instruction is de emed necessary). For the reasons stated, we affirm Bey's conviction. Affirmed.

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