COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Kelsey and McClanahan 

Argued by teleconference 

BILLY LEON ALFORD 

 OPINION BY 

v. Record No. 2125-09-3 JUDGE D. ARTHUR KELSEY 

 AUGUST 10, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

James R. Swanson, Judge 

Melissa W. Friedman (Anthony F. Anderson; Anderson & 

Friedman, on brief), for appellant. 

Richard B. Smith, Senior Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee. 

 

A grand jury indicted Billy Leon Alford for attempted rape. At trial, the prosecutor and 

Alford’s counsel agreed on a set of jury instructions which included finding instructions for 

attempted rape and assault and battery.1

 The jury convicted Alford of assault and battery. 

On appeal, Alford argues the trial court erred by instructing the jury on assault and 

battery because it is not a lesser-included offense of attempted rape, the charged offense. We 

need not address this assertion, however, because Alford invited error by agreeing to the jury 

instructions he now challenges. See McBride v. Commonwealth, 44 Va. App. 526, 529-30, 605 

S.E.2d 773, 774-75 (2004) (barring consideration of alleged jury instruction error where the 

defendant tendered the instructions challenged on appeal). Under settled principles, a criminal 

 1

 The agreement of counsel to the instructions apparently took place off the record. On 

the record, however, the trial court confirmed the agreement. See App. at 165. In his brief on 

appeal, Alford concedes “[d]efense counsel and the Attorney for the Commonwealth agreed to 

the Instructions read by the Court and neither party offered any additional instructions.” 

Appellant’s Br. at 1-2. 
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defendant cannot “approbate and reprobate by taking successive positions in the course of 

litigation that are either inconsistent with each other or mutually contradictory. Nor may a party 

invite error and then attempt to take advantage of the situation created by his own wrong.” Rowe 

v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH 

Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)).2 Alford’s “approbation and 

reprobation is necessarily fatal to his lesser-included-offense argument.” Id.

Alford argues we should invoke the ends-of-justice exception to Rule 5A:18. For several 

reasons, we decline to do so. The approbate-reprobate doctrine is broader and more demanding 

than Rule 5A:18. The very fact that Alford “invited the error” (by agreeing the assault and 

battery jury instruction should be given) renders Rule 5A:18’s ends-of-justice exception 

inapplicable. Rowe, 277 Va. at 503, 675 S.E.2d at 165.3

 It can hardly be a “grave injustice” to a 

defendant’s essential rights, Brittle v. Commonwealth, 54 Va. App. 505, 513, 680 S.E.2d 335, 

339 (2009), for a trial court to give an agreed-upon jury instruction on assault and battery (a 

misdemeanor with a maximum sentence of twelve months) in a case where the defendant is 

charged with attempted rape (a felony with a sentencing range of two to ten years). 

Even in cases governed by Rule 5A:18 — those involving mere waiver rather than 

invited error — we consider the ends-of-justice doctrine to be a “narrow” exception that should 

be “used sparingly.” Id. at 512, 680 S.E.2d at 339 (citation omitted). It is never enough for the 

 2 See also Porter v. Commonwealth, 276 Va. 203, 231, 661 S.E.2d 415, 428 (2008); 

Muhammed v. Commonwealth, 269 Va. 451, 525, 619 S.E.2d 16, 58 (2005); Powell v.

Commonwealth, 267 Va. 107, 144, 590 S.E.2d 537, 560 (2004); Fisher v. Commonwealth, 236 

Va. 403, 417, 374 S.E.2d 46, 54 (1988). 

3

 Though it is unnecessary to catalogue them all, we acknowledge exceptions exist even 

to the procedural bar imposed by the invited error doctrine — like, for example, when the error 

caused the trial court to go beyond its subject matter jurisdiction, Bazemore v. Commonwealth, 

42 Va. App. 203, 219-20, 590 S.E.2d 602, 610 (2004) (citing Nelson v. Warden, 262 Va. 276, 

281, 552 S.E.2d 73, 75 (2001)), or to impose a void sentence in excess of the applicable statutory 

maximum, Batts v. Commonwealth, 30 Va. App. 1, 11, 515 S.E.2d 307, 312 (1999). None of 

these exceptions, however, apply to this case. 
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defendant to merely assert a winning argument on the merits — for if that were enough 

procedural default “would never apply, except when it does not matter.” Delaney v. 

Commonwealth, 55 Va. App. 64, 69, 683 S.E.2d 834, 836 (2009). “Indeed, if that were the case, 

every issue would be subject to appellate review regardless of whether the issue was properly 

preserved.” Brittle, 54 Va. App. at 513, 680 S.E.2d at 339. 

With respect to jury instructions, we employ the ends-of-justice exception when the trial 

court convicts the defendant “for conduct that was not a criminal offense” — that is, when the 

absence of a proper jury instruction and proof of an essential element makes it a legal 

impossibility for defendant to have committed a crime. Id. at 514, 680 S.E.2d at 340 (citation 

omitted). The combination of a flawed or missing jury instruction and the failure of the evidence 

to prove an essential element triggers the ends-of-justice exception to Rule 5A:18. Id. at 515, 

680 S.E.2d at 340 (explaining Jimenez v. Commonwealth, 241 Va. 244, 402 S.E.2d 678 (1991)). 

We also apply the ends-of-justice exception where the defendant “affirmatively prove[s] that an 

element of the offense did not occur.” Id. at 514, 680 S.E.2d at 340 (citation omitted). None of 

these exceptional circumstances exist here. 

In sum, Alford cannot challenge on appeal his assault and battery conviction because he 

agreed the trial court should instruct the jury on this charge. We thus affirm his conviction. 

 Affirmed.