COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Overton 

Argued at Norfolk, Virginia 

DANNY LOPEZ MARTINEZ 

 MEMORANDUM OPINION* BY 

v. Record No. 0176-96-1 JUDGE NELSON T. OVERTON 

 DECEMBER 3, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

William F. Rutherford, Judge 

 Jan F. Hoen (Zoby & Broccoletti, on brief), 

for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Danny Lopez Martinez was convicted by a jury of robbery in 

violation of § 18.2-58 and the use of a firearm in the commission 

of robbery in violation of § 18.2-53.1. He appeals his 

convictions, contending that the trial court erred in refusing to 

grant his jury instruction on a claim of right defense. Because 

we find that the evidence does not support such an instruction, 

we affirm. 

 The parties are fully conversant with the record in the 

cause, and a recitation of the facts is unnecessary to this 

memorandum opinion. 

 "A jury must be instructed on any theory or affirmative 

defense supported by the evidence." McCoy v. Commonwealth, 9 Va. 

 

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

designated for publication. 
- 2 - 

App. 227, 229, 385 S.E.2d 628, 629 (1989); see Stevenson v. 

United States, 162 U.S. 313, 322 (1896). This Court must decide 

whether the evidence when viewed in the light most favorable to 

the defendant's theory required the requested instruction. 

McCoy, 9 Va. App. at 229, 385 S.E.2d at 629; see Neighbors v. 

Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208 (1973). 

 Martinez requested two jury instructions pertaining to the 

claim of right defense. Martinez argues that if he took the 

property "under a bona fide claim of right, as under a claim of 

ownership or in a bona fide attempt to enforce payment of a 

debt," then he lacked the necessary criminal intent and his 

convictions fail. See Pierce v. Commonwealth, 205 Va. 528, 533, 

138 S.E.2d 28, 32 (1964). The defense's theory in this case 

stems solely from a statement made by Martinez at the time of the 

incident and overheard by other witnesses. Martinez asked the 

alleged robbery victim where the money was that the victim owed 

him. On appeal, he now contends that this statement is 

sufficient evidence so that a jury could reasonably conclude that 

he was acting under a claim of right, thus absolving him from the 

offense of robbery. 

 We disagree. Although Martinez's statement provided some 

evidence that he believed that the victim owed him money, no 

evidence was presented to prove the amount that was owed. No 

connection was made between the amount taken from the victim and 

the amount of the alleged debt. In addition to money, the 
- 3 - 

victim's wallet and its contents were taken by Martinez when he 

ran away. 

 These circumstances do not provide the requisite evidence to 

support a jury instruction for a claim of right defense. Because 

no evidence proved that Martinez took no more than he was owed, 

the evidence did not present a factual basis from which the jury 

could have determined whether Martinez had a bona fide claim to 

what he took. Cf. Butts v. Commonwealth, 145 Va. 800, 815, 133 

S.E. 764, 768-69 (1926) (taking was bona fide where the defendant 

demanded or took no more than what was due him). When the 

evidence proves the amount owed and the amount taken, the 

question of bona fides becomes an issue for the trier of fact. 

See Pierce, 205 Va. at 533-34, 138 S.E.2d at 32. If the proposed 

instruction had been given, the jury would have been required to 

speculate as to the amount of the debt. Thus, the evidence in 

this case did not support a claim of right jury instruction. 

 For the reasons stated, the convictions are affirmed. 

 Affirmed.