Dufresne v. Commonwealth

Full title: Victoria Elizabeth Dufresne v. Commonwealth of Virginia.

Court: Court of Appeals of Virginia, Richmond.

Date published: Oct 18, 2016

66 Va. App. 644 (Va. Ct. App. 2016)

791 S.E.2d 335

Opinion

Record No. 0281–15–2.

10-18-2016

Victoria Elizabeth Dufresne v. Commonwealth of Virginia.

Dorian Dalton, Senior Assistant Public Defender, for appellant. Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

BEALES, Judge.

Dorian Dalton, Senior Assistant Public Defender, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUFF, C.J., HUMPHREYS, PETTY, BEALES, ALSTON, CHAFIN, DECKER, O'BRIEN, RUSSELL, ATLEE and MALVEAUX, JJ.

UPON A REHEARING EN BANC

BEALES, Judge.Victoria Elizabeth Dufresne was indicted and tried for robbery. At the conclusion of her bench trial, Dufresne asked the trial court to find her guilty of grand larceny.¹ The trial court convicted Dufresne of grand larceny and sentenced her to five years imprisonment with three years suspended. Dufresne appealed her conviction for grand larceny to this Court, arguing that the trial court erred in denying her post-trial motion to set aside the verdict. The majority opinion of a divided three-judge panel reversed the judgment of the trial court and remanded the case for further proceedings in the trial court. Dufresne v. Commonwealth , No. 0281–15–2, 2016 WL 486493, 2016 Va. App. LEXIS 38 (Va. Ct. App. Feb. 9, 2016). This Court granted the Commonwealth's request for a rehearing en banc . Upon rehearing this matter en banc , we hold that Dufresne invited error when she directly asked the trial court to enter a conviction order for grand larceny. Thus, we apply the invited error doctrine and, consequently, affirm the trial court.

1 Dufresne has never argued that the evidence failed to establish that she committed the act of grand larceny. Indeed, the evidence proved beyond a reasonable doubt that she stole money and prescription pills valued at well over $200 from the victim.

I. BACKGROUND

We consider the evidence on appeal “in the light most favorable to the Commonwealth, as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth , 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth , 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004) ). So viewed, the victim in this case is a quadriplegic confined to a wheelchair or bed whose condition requires twenty-four-hour care. The victim testified that, as of July 9, 2014, he considered Dufresne to have been his friend for the last five years and had even allowed Dufresne to stay at his residence the previous two evenings. On July 9, 2014, Dufresne offered to help the victim in place of his caregiver—who was scheduled to arrive at 5:00 p.m. At Dufresne's behest, the victim called his normal caregiver at approximately 4:30 p.m. to tell her not to come that day. Once the victim had spoken to his caregiver, Dufresne left the victim's home. She later returned with a male friend named Jonathan, whom the victim did not know.

When Dufresne and Jonathan entered the victim's residence, the victim was lying on a bed. After engaging the victim in a brief conversation, Jonathan took the victim's phone from him, which had been resting on the victim's abdomen. The victim begged and pleaded with Dufresne and her friend to return his phone, as it was his sole means of contacting the outside world. After Jonathan had taken the victim's phone, the victim heard Dufresne ask Jonathan, “What would you like to do? Do you want to finish this?” The victim testified that he was in complete shock, that he was very frightened by Dufresne's conduct, and that “[a]t that point, [he understood] what was going on.” Dufresne then reached into a pillowcase behind the victim's head and took the victim's wallet and some pills. The wallet contained approximately $320 to $345 in cash. The victim testified that he was unable to take any action to stop Dufresne, because of his condition as a quadriplegic, except to push his head back against his pillow, where his wallet and pills were. Before leaving with Jonathan, Dufresne also took the victim's bed remote control from him, telling the victim that she needed to take it with her “because there might be a help button on there, or a way for you to get in contact.” Dufresne and Jonathan then left the residence. The victim testified that he screamed for help for a long time and that it was approximately five hours before his roommate returned from work and found him.

Dufresne was indicted and tried for robbery. At the conclusion of the Commonwealth's case-in-chief, Dufresne moved to strike the evidence. During argument, the trial judge asked Dufresne's counsel, “Is it grand larceny, grand larceny from the person, or is it robbery?” Dufresne's counsel replied, “The argument would be larceny.” When then asked by the trial court if Dufresne was guilty of grand larceny, her counsel responded, “They prove value with the cash. So yes. I would say that they have met the burden for grand larceny.” The trial court denied the motion to strike.

Dufresne then put on evidence. After Dufresne rested her case and renewed her motion to strike, the trial court entertained closing argument, stating to both counsel, “We are [at] closing arguments now.” The Commonwealth waived its right to speak first, and Dufresne began her closing argument. During that argument, her counsel reiterated that she was renewing her motion to strike.² The last substantive statement of Dufresne's counsel during the closing argument was a specific and direct request for the trial court to find Dufresne guilty of grand larceny (“For these reasons, I'd ask for the charge to be dropped down to grand larceny.”). After Dufresne asked the trial court to convict her of grand larceny, the Commonwealth continued to strongly argue, “it was a robbery...,” and emphasized that the property Dufresne stole was “taken from his [the victim's] person or his presence against his will by violence or intimidation.” The trial court found Dufresne guilty of grand larceny. In the written conviction order entered December 9, 2014, the trial court stated that it denied Dufresne's renewed motion to strike the evidence on the robbery charge.

2 The dissent makes much of the fact that Dufresne's request to be convicted of grand larceny came as part of a renewed motion to strike, asserting that the “sole purpose of a motion to strike the evidence is to assert to the trial court any legal insufficiency in the Commonwealth's proof....” This ignores that the statement was not simply a part of a renewed motion to strike, but was Dufresne's requested disposition of the case at the very end of her closing argument.

On January 26, 2015, nearly seven weeks after the entry of the conviction order, Dufresne filed a motion to set aside her conviction for grand larceny. At a hearing held on February 5, 2015, Dufresne argued that grand larceny is not a lesser-included offense of robbery and that the trial court could only properly convict her of petit larceny. The Commonwealth argued in response that Dufresne had invited error when she specifically asked the court at trial to find her guilty of grand larceny. At the hearing, the trial court addressed Dufresne directly and stated, “Your lawyer did a fine job by getting me ... to get you out from under the robbery conviction.” The court denied the motion to set aside the verdict and sentenced Dufresne to five years imprisonment with three years suspended.II. ANALYSIS

A. DUFRESNE INVITED THE VERY ERROR ABOUT WHICH SHE COMPLAINS

Dufresne assigns error to the trial court's refusal to set aside her conviction for grand larceny and enter a conviction for petit larceny. At the end of her trial, however, Dufresne directly asked the trial court to convict her of grand larceny. In Rowe v. Commonwealth , 277 Va. 495, 675 S.E.2d 161 (2009), the Supreme Court held that “[a] party may not 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. ” Id. at 502, 675 S.E.2d at 164 (emphasis added) (quoting Cangiano v. LSH Bldg. Co. , 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006) ).

In this matter, Dufresne invited error and subsequently attempted to take advantage of the situation created by her own wrong. During her combined closing argument and second motion to strike the evidence, Dufresne specifically invited the trial court to convict her of a less serious felony by stating, “I'd ask for the charge to be dropped down to grand larceny.”³ At the post-trial hearing on Dufresne's motion to set aside the verdict, she then attempted to take advantage of the situation created by her own wrong by asking the court to set aside her grand larceny conviction and to enter a misdemeanor petit larceny conviction.The trial court accepted Dufresne's invitation to find her guilty of grand larceny. Dufresne's request is, of course, the key to resolving this appeal. Absent an invitation to err, the invited error doctrine does not apply. If not for Dufresne's specific request that the trial court convict her of grand larceny, the conviction for grand larceny under an unamended indictment for robbery constitutes reversible error.⁴ From these facts, there can be no question that Dufresne invited the error that is the subject of this appeal. Only by ignoring the fact that Dufresne specifically asked the trial court to convict her of grand larceny can she reach the conclusions that (1) she did not invite the very error of which she now complains, and (2) that the invited error doctrine does not bar her requested relief on appeal.⁵

3 As Dufresne expressly recognized in her closing argument in the trial court, a conviction for robbery carries with it stiffer potential penalties than one for grand larceny. While both crimes are felonies, robbery is “punishable by confinement in a state correctional facility for life or any term not less than five years.” Code § 18.2–58. Grand larceny is “punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years.” Code § 18.2–95. Thus, Dufresne had potentially much to gain by requesting a conviction for grand larceny, instead of robbery, because twenty years is the absolute maximum sentence for a conviction of grand larceny.

4 The trial court clearly committed error in convicting Dufresne of grand larceny. Grand larceny is not a lesser-included offense of robbery, and “[i]t is firmly established ... that an accused cannot be convicted of a crime that has not been charged, unless the crime is a lesser-included offense of the crime charged.” Commonwealth v. Dalton , 259 Va. 249, 253, 524 S.E.2d 860, 862 (2000). In the normal course, such error would require reversal. Dufresne's specific request that she be convicted of grand larceny changes the equation and implicates the doctrine of invited error.

5 To be clear, prior to inviting error during her closing argument, Dufresne, in the course of her motion to strike at the conclusion of the Commonwealth's evidence, had merely conceded that the evidence would have supported a conviction for grand larceny. At trial, when asked by the trial court whether Dufresne was guilty of “grand larceny, grand larceny from the person, or ... robbery,” Dufresne's counsel responded, “The argument would be larceny.” When then asked by the trial court if Dufresne was guilty of grand larceny, her counsel responded, “They prove value with the cash. So yes. I would say that they have met the burden for grand larceny.” These statements or concessions were made in response to questions from the trial judge during the initial motion to strike; however, this Court cannot ignore the fact that Dufresne later, in her closing argument, made a direct request to the trial court to find her guilty of grand larceny , and thus, invited the error about which she complains.

Contrary to any characterization of Dufresne's specific invitation as a mere misstatement or an erroneous concession of law, the record demonstrates that Dufresne never argued that she simply misspoke or made a mistake at trial when she presented the trial court with the option to convict her of grand larceny. In fact, Dufresne's “explanation” for the error was an inaccurate claim that, “[i]f the Court will recall, we never made a request to have her found guilty of grand larceny. We just kept using the term larceny.” Dufresne later stated at the same hearing that the defense “never specifically brought out in the argument to have this found grand larceny.” As noted above, counsel's recollection during the motion to set aside the verdict of what Dufresne actually requested in the prior hearing was mistaken because she had, in fact, specifically requested that the trial court convict her of grand larceny.

B. APPLICATION OF THE INVITED ERROR DOCTRINE

Dufresne argues that the invited error doctrine is applicable only when the error complained of is raised for the first time on appeal. By focusing on timeliness of the objection in the trial court by the party who invited the error, however, Dufresne's argument would reduce the invited error doctrine to nothing more than a subset of the contemporaneous objection rule of Rule 5A:18. That conclusion is contrary to longstanding Supreme Court precedent where the invited error doctrine was applied in situations, like here, where the party who invited error later raised the issue to the trial court.

In Sullivan v. Commonwealth , 157 Va. 867, 161 S.E. 297 (1931), the defendant was indicted for breaking and entering with intent to maim, disfigure, and kill in violation of then Code Section 4439. Prior to the commencement of the trial, defense counsel moved to require the prosecutor “to elect under which section of the Code of Virginia the accused would be tried.” Id. at 870, 161 S.E. at 297. In response to the defendant's own motion, the prosecutor elected to proceed under the charge of breaking and entering with intent to commit murder, rape or robbery in violation of then Code Section 4438. The defendant did not object to this election. Id. at 871, 161 S.E. at 297. With the acquiescence of the defendant, the trial proceeded upon the charge that the breaking and entering was committed with intent to commit murder. Id. at 871, 161 S.E. at 297–98.

After an instruction was given to the jury on the charge of breaking and entering with intent to commit murder, rape or robbery, Sullivan objected on the grounds that that instruction was “predicated upon section 4438 of the Code, while the indictment is drawn under section 4439 of the Code, and that the indictment in this case is fatally defective as an indictment under section 4438 of the Code.” Id. at 873, 161 S.E. at 298–99. After the trial, the defendant also moved the trial court to set aside the verdict on the same grounds. The trial court refused the defendant's request and overruled the motion. On appeal, the Supreme Court stated:

Just why the attorney for the accused moved the court to require the attorney for the Commonwealth to elect under which of the sections he would prosecute the accused does not appear. We shall therefore not speculate as to the motive. Whatever the motive, the same consequences follow. The accused acquiesced in the prosecution for a breaking and entering with intent to commit murder, rape or robbery. That was the charge which he defended and about which he testified. After the evidence had been concluded he should not have been permitted to claim that he could not be prosecuted under section 4438. By this acquiescence he waived the right to make that contention because it was inconsistent with his own motion to require the prosecutor to elect under which section he should be tried. The motion, by necessary implication, conceded the right to try the accused under either section. Though the procedure was so irregular, the accused cannot be allowed to take advantage of an irregularity for which he is directly responsible. He cannot approbate and reprobate—invite error and then take advantage of his own wrong.

Id. at 878, 161 S.E. at 300 (emphasis added).

Both Sullivan and Dufresne were initially indicted for a violation of one statute and subsequently convicted of a violation of a different statute. Sullivan was responsible for the irregularity that resulted from his motion. Even though Sullivan sought to correct the error while the matter was still before the trial court, the Supreme Court applied the invited error doctrine, holding that “the accused cannot be allowed to take advantage of an irregularity for which he is directly responsible .” Id. (emphasis added). In the present case, Dufresne is not merely responsible for the events that culminated in her conviction for grand larceny, she directly asked the trial court to find her guilty of that very offense . Therefore, because the Supreme Court has applied the invited error doctrine in cases where an objection about that error was later made before the trial court, the doctrine applies in this case. See also Fisher v. Commonwealth , 236 Va. 403, 416, 374 S.E.2d 46, 53 (1988) (citing Sullivan with approval, the Supreme Court held that “[n]o litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate—to invite error, as the defense admittedly did here, and then to take advantage of the situation created by his own wrong”).⁶

6 Recognizing that Sullivan makes clear that the invited error bar can apply even when the issue was raised while the matter was before the trial court, the dissent does its best to distinguish Sullivan from this case. The result is unpersuasive.
Ultimately, the dissent justifies departing from the rationale of Sullivan because it involved a jury trial as opposed to a bench trial, noting that “[b]ecause this was a bench trial with the trial court acting as the factfinder, I would hold that Dufresne's motion to set aside the verdict was timely, even though it was made prior to sentencing and almost two months after the trial....” The dissent points to nothing in Virginia case law that even hints that there are different rules for the proper application of the invited error doctrine in jury and bench trials. We decline to endorse such an approach.
The dissent's analysis is flawed and its conclusion in error largely because it begins from flawed premises and imposes requirements for the application of the invited error doctrine that are not found in existing precedent. These flawed premises lead the dissent away from a straightforward application of the rule of Sullivan.

C. QUESTIONS OF PREJUDICE DO NOT ALTER THE ANALYSIS

The dissent relies heavily on its conclusion that the Commonwealth suffered no prejudice as a result of Dufresne's shifting arguments in the trial court. This analysis is flawed for two reasons. First, the invited error cases referenced by the dissent do not contain a prejudice requirement.⁷ Although the dissent correctly notes that many of the prior cases it cites involved situations where a party did suffer prejudice, none of those cases stated that prejudice was required. Because such a requirement is not expressed in the Supreme Court's previous invited error cases, the dissent's insistence on that requirement here represents the crafting of a new doctrine as opposed to the simple application of the existing invited error doctrine.

7 The dissent's reliance on Lofton Ridge, LLC v. Norfolk S. Ry. , 268 Va. 377, 601 S.E.2d 648 (2004), is misplaced. Lofton Ridge dealt with the doctrine of judicial estoppel—not the invited error doctrine. In that case, no litigant expressly requested that the trial court take an action and then argued that the trial court erred by giving the litigant exactly what had been requested. As that is the central issue in a case of invited error, Lofton Ridge is inapposite here. Furthermore, the quoted language in the dissent was not part of the Supreme Court's holding, which was limited to its conclusion that “the doctrine of judicial estoppel will not act as a preclusive bar to the subsequent proceeding unless the parties are the same.” Id. at 383, 601 S.E.2d at 651.

Second, viewing the record in the light most favorable to the Commonwealth, the prevailing party below, the dissent's conclusion regarding the lack of prejudice is, at best, questionable. The Commonwealth was denied something it was entitled to receive—having the trial court decide whether Dufresne was guilty of robbery or petit larceny.⁸ The dissent makes much of the Commonwealth's decision not to seek to amend the indictment to grand larceny. However, the record reveals that the Commonwealth never asked the trial court to consider a conviction for grand larceny. Instead, the Commonwealth consistently argued throughout the proceedings that the evidence established that “it was a robbery” accomplished “by violence or intimidation.” Such a decision was, in practical effect, a strategic choice by the Commonwealth analogous to a party in a jury trial not seeking instructions based on a lesser-included offense because it would rather have no conviction at all rather than a conviction on the lesser as opposed to the greater offense.⁹ The Commonwealth was willing to rely exclusively on the evidence supporting a robbery conviction with the downside risk being that it would be left with just a misdemeanor conviction if the trial court rejected the robbery charge. The merits of such an “all or nothing” strategy aside, the Commonwealth was entitled to see the results of its strategy through to its conclusion. Thus, the Commonwealth was prejudiced when the trial court refused to decide between petit larceny and robbery by accepting Dufresne's invitation to convict her of grand larceny.

8 Dufresne does not contest, even now on appeal, that the evidence established that she was guilty of petit larceny. Accordingly, an acquittal was not a viable third option.

9 Although we do not know whether this was actually the Commonwealth's reasoning, such a reading is possible under the record before us when the record is viewed in the light most favorable to the Commonwealth. Wilkins v. Commonwealth , 64 Va.App. 711, 713, 771 S.E.2d 705, 706 (2015) (“[W]e consider the circumstances in the record in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court.” (internal citation and quotation marks omitted)), aff'd , 292 Va. 2, 786 S.E.2d 156 (2016).

Even if the failure to provide the Commonwealth with a straight up or down decision on the question of robbery versus petit larceny was not, in and of itself, prejudice to the Commonwealth, it is far from clear that, if confined to the appropriate choices, the trial court would not have convicted Dufresne of robbery. If the trial court would have convicted her of robbery absent Dufresne's invitation to convict her of grand larceny, then the Commonwealth suffered prejudice.

Viewing the record in the light most favorable to the Commonwealth, it certainly is possible that the trial court would have convicted Dufresne of robbery if confined to the two appropriate choices. Although we cannot know for certain whether or not the trial judge would have convicted Dufresne of robbery, it is sufficiently clear that the trial judge relied on Dufresne's offer to enter a finding of guilt for grand larceny to terminate the prosecution for robbery. It is also clear that the trial court nearly convicted Dufresne of robbery, as the court stated on the record at the conclusion of the trial that the sufficiency of the evidence required for robbery was “[c]lose.” Faced with the appropriate choice of either robbery or petit larceny, the trial court may well have convicted Dufresne of robbery.

The dissent argues that such a conviction was not a possibility. First, the dissent asserts that Dufresne's argument that the evidence only supported a larceny conviction was correct and that, as a result, the trial court “acquitted” her of robbery. We disagree with this conclusion and believe, when viewed in the light most favorable to the Commonwealth, the evidence was sufficient to allow a reasonable factfinder to convict Dufresne of robbery. See Harris v. Commonwealth , 3 Va.App. 519, 521, 351 S.E.2d 356, 357 (1986) (in robbery cases, “[t]hreats of violence or bodily harm are not an indispensable ingredient of intimidation. It is only necessary that the victim actually be put in fear of bodily harm by the willful conduct or words of the accused.”).

The dissent asserts that, by convicting Dufresne of grand larceny as opposed to robbery, the trial court implicitly found that the Commonwealth's evidence was insufficient to allow a reasonable factfinder to conclude that she was guilty of robbery. Specifically, the dissent writes that

the obvious explanation supported by this record for the trial court's statement to Dufresne that “[y]our lawyer did a fine job by getting me ... to get you out from under the robbery conviction” is simply that the trial court did not agree with the Commonwealth that the element of force, threat or intimidation required for a robbery conviction was proven beyond a reasonable doubt.

Although perhaps a plausible reading of the trial court's statements from the bench, it is clearly not the only possible reading and certainly is not a reading that results from viewing the record in the light most favorable to the Commonwealth.

Furthermore, the dissent's conclusion that the trial court implicitly found that the Commonwealth's evidence was insufficient to establish an element of robbery conflicts with the trial court's ruling on the motion to strike. The trial court's written order denied the motion to strike at the close of all of the evidence.¹⁰ By definition, such a denial is a finding that the Commonwealth's evidence was sufficient to allow a reasonable factfinder to conclude, beyond a reasonable doubt, that all of the elements of robbery had been proven. As such, the dissent, viewing the record in the light most favorable to the Commonwealth, cannot properly conclude that there is no possibility that the Commonwealth was prejudiced by the trial court's acceptance of Dufresne's invitation to convict her of grand larceny.D. REVIEW OF THE TRIAL COURT'S DENIAL OF DUFRESNE'S MOTION TO SET ASIDE THE VERDICT

10 To the extent that the trial court's statements are read to conflict with the written order, the written order controls. Temple v. Mary Washington Hosp., Inc. , 288 Va. 134, 141, 762 S.E.2d 751, 754 (2014) (holding that “trial courts speak only through their written orders”). Thus, the dissent's assertion that Dufresne was “acquitted of” robbery is not supported by the record.

Dufresne has assigned error to the trial court's refusal at the post-trial hearing to set aside her conviction for grand larceny. We hold that the trial court did not abuse its discretion when it denied Dufresne's motion to set aside the verdict.

To be clear, we do not hold today that a litigant shall be forever bound by a mistaken statement of law or fact once the words have left the lips of counsel. Counsel at trial, consistent with professional obligations and the interests of clients, should inform the trial court of his or her mistake and ask the court to correct the invited error. The trial court, having been informed of the error, must then determine if, under the circumstances, it is appropriate to relieve the litigant of the consequences of the invited error.

Whether granting such relief is appropriate necessarily will depend on the facts and circumstances of each case. Issues of potential prejudice, whether the trial court believes the error was invited intentionally, when in the proceeding the error is brought to the trial court's attention, the amount of time that has passed between the invitation to commit error and the withdrawal of the invitation, the degree to which subsequent proceedings in the trial court were infected by the error, and other factors may properly influence the trial court's decision of whether or not to relieve a party of the consequences of his or her invitation to commit error. In turn, we then review that decision of the trial court on appeal for an abuse of discretion.¹¹

11 It is important to recognize that this Court is now reviewing the decision of the trial court not to allow Dufresne to withdraw her invitation to err—and not the underlying error—for an abuse of discretion. It is true that a trial court, by definition, abuses its discretion when it makes an error of law. Porter v. Commonwealth , 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008). In every case involving invited error, the trial court will have abused its discretion in accepting the invitation to err. In cases of invited error, identifying the invited error is the beginning and not the end of the analysis. To hold otherwise and find that the initial error constitutes an abuse of discretion that requires reversal would completely eviscerate the invited error doctrine.

Again, there is no question that the trial court erred in convicting Dufresne of grand larceny.¹² However, we cannot say that the trial court abused its discretion in refusing to allow Dufresne to change her position and to avoid the consequences of her specific invitation to the court to err. Dufresne's initial insistence that the trial court convict her of grand larceny as opposed to robbery, the passage of time (nearly seven weeks) from the granting of her request and her bringing the error to the trial court's attention, our inability from the cold, paper record before us to determine whether the invitation was simply a mistake or an intentional act, and the prejudice—potential or actual—suffered by the Commonwealth are relevant factors that support the trial court's decision to deny Dufresne's motion to set aside the verdict. Accordingly, we hold that the trial court did not abuse its discretion when it refused to allow Dufresne to withdraw her invitation.¹³ III. CONCLUSION

12 It is difficult to discern from the record before us why the trial court accepted the invitation to err. However, as noted above, regardless of the reason, it is clear that the trial court erred in convicting Dufresne of a crime for which she was not indicted and that was not a lesser-included offense of the charge levied in the indictment. Dalton , 259 Va. at 253, 524 S.E.2d at 862.

13 The dissent suggests that the application of the well-established invited error doctrine to Dufresne's conduct in this case would have serious negative effects on criminal defendants, going so far as to label such effects even “draconian.” First, it asserts that finding Dufresne's argument barred by the invited error doctrine “effectively converts many if not most motions to strike the evidence into the functional equivalent of guilty pleas....” Second, the dissent posits that applying the invited error doctrine in this situation requires concluding that a party's taking a legal position is “irrevocable and irreversible” once the words leave the lips of her counsel. Neither position survives scrutiny.
A litigant was and remains free to argue during a motion to strike that the evidence might support convictions for offenses other than the crime charged but does not support a conviction for that offense. Such an argument does not in any way implicate the invited error doctrine. Regarding the motion to strike scenario referenced by the dissent, the invited error doctrine only becomes an issue if such arguments are extended to include a specific request to convict for an uncharged crime that is not a lesserincluded offense. As noted above, Dufresne did far more than argue in a motion to strike that the evidence might have supported her conviction for crimes other than robbery; she specifically invited the trial court to convict her of grand larceny during her closing argument. It is that specific request and not the rest of her statements that govern the result here.

In summary, Dufresne invited the very error in the trial court about which she now complains. In the post-trial motion and on appeal, Dufresne has endeavored to take advantage of the trial court's acceptance of her invitation to err by asking for a conviction for misdemeanor petit larceny, instead of the conviction for grand larceny that she requested at trial. The trial court was intimately familiar with the record and well-positioned to observe conduct of the parties when it refused to allow Dufresne to change her position and avoid the consequences of her specific invitation to the court to err. Therefore, we hold that the trial court did not abuse its discretion when it held Dufresne to her invited error and, consequently, we affirm the conviction Dufresne requested below.

Affirmed. HUMPHREYS, J. with whom HUFF, C.J., PETTY, ALSTON and CHAFIN, JJ. join, dissenting.

This case presents an issue of first impression in the Commonwealth with respect to the invited error doctrine¹⁴ : assuming error was actually invited, whether or to what extent the invited error doctrine applies when the party misstating the law or inviting or acquiescing in an error of law attempts corrective action in the trial court and no prejudice to other parties has yet resulted from the error? Because the majority opinion omits facts and law pertinent to the legal analysis in this case, and, further, because in my view, the majority's analysis is seriously flawed and fraught with major adverse consequences for the conduct of future trials, I dissent from the analysis and judgment of the majority in this case. WHETHER DUFRESNE INVITED ERROR IN THE FIRST INSTANCE

14 The Commonwealth also argues that Dufresne's assignment of error is barred because a party may not approbate and reprobate. Although there is occasional overlap in their application and the terms are often inartfully used interchangeably by both this Court and our Supreme Court, the approbate-reprobate bar and the invited error doctrine are analytically different in both their definition and application. See e.g. Matthews v. Matthews , 277 Va. 522, 675 S.E.2d 157 (2009) ; see also Alford v. Commonwealth , 56 Va.App. 706, 696 S.E.2d 266 (2010). The approbate-reprobate bar requires that where a party affirmatively assumes inconsistent legal positions on their own behalf , the opposing party and the courts are entitled to rely on the position first taken and the approbating party will be bound thereby. Unless amended , a litigant's pleadings are binding upon him. His opponent is entitled to rely upon the position he takes, and should be able to prepare for trial with the assurance that this position will not be suddenly changed without notice. For this reason, a litigant will not be permitted to assume, successively, inconsistent and mutually contradictory positions. Berry v. Klinger , 225 Va. 201, 207, 300 S.E.2d 792, 795 (1983) (citing Winslow v. Scai f e , 224 Va. 647, 299 S.E.2d 354 (1983) ).
The invited error doctrine is somewhat different and holds that an appellate court will consider as waived for the purposes of an appeal, those errors of law that are induced, encouraged, acquiesced in, consented to or otherwise permit a party to “take advantage of the situation created by his own wrong .” Cangiano v. LSH Bldg. Co. , 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006) (emphasis added). In this case, the majority, the Commonwealth, and several of the cases cited also conflate the two concepts. Because Dufresne has not assumed inconsistent legal positions on her own behalf, in my view, this case implicates only the invited error doctrine.

It is undisputed that, during her argument on a motion to strike the evidence, Dufresne conceded that grand larceny was an offense for which she could be convicted.¹⁵ It is also undisputed that, since grand larceny is not a lesser-included offense of robbery, for which she was indicted, Dufresne could not properly be convicted of grand larceny absent an amendment to the indictment. Therefore, as everyone now agrees, the trial court erred in convicting Dufresne of grand larceny, in violation of Code § 18.2–95.However, I begin my departure from the analysis of my colleagues by noting that their assertion that Dufresne “asked the trial court to convict her of grand larceny” during closing argument is not accurate. Although at the conclusion of all the evidence the trial court stated “we are closing arguments now [sic],” counsel for Dufresne immediately followed that statement by the trial court with her statement, “This is my motion to renew my motion to strike.” Counsel for Dufresne then argued the failure of the Commonwealth's evidence to establish the element of force, threat or intimidation sufficient to support the charge of robbery and as reflected on page 62, lines 22–23 of the joint appendix and contrary to the assertion of the majority, concluded her argument by stating, “For those reasons, I'd ask for the charge to be dropped down to grand larceny.” Based upon the actual statements made by counsel for Dufresne, I cannot accept the majority's initial premise that the statements by counsel for Dufresne were anything more than a misstatement of the law in the form of a concession regarding the sufficiency of the Commonwealth's evidence in the context of a motion to strike the evidence.Based upon my view stated above regarding the statement actually made by Dufresne's counsel and the context in which it was made, I also conclude that the trial court was not bound by Dufresne's concession because a party “cannot concede the law.” Cofield v. Nuckles , 239 Va. 186, 194, 387 S.E.2d 493, 498 (1990). Moreover, the record reflects that, in this case, the trial court's error can ultimately only be laid at its own feet.

15 The majority insists that Dufresne's argument was not a concession but rather the adoption of the irrevocable legal position that she was guilty of grand larceny. For the reasons detailed more fully below, I fail to see how Dufresne's argument could be considered as anything but a concession regarding the sufficiency of the Commonwealth's evidence.

The goal of the adversary system of criminal justice that is utilized throughout the English speaking world is to provide a defendant with a fair trial. However, the courts have long recognized that a fair trial does not mean a perfect trial. See United States v. Hasting , 461 U.S. 499, 508–09, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983) (“there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial”); see also Gilland v. Commonwealth , 184 Va. 223, 235, 35 S.E.2d 130, 135 (1945) (“A perfect trial is one of the things hoped for but as yet an iridescent dream.”). Indeed, the harmless error doctrine evolved in recognition that counsel and judges are human and, thus, fallible, but a judgment will not be disturbed if there was “a fair trial on the merits and substantial justice has been reached.” Shifflett v. Commonwealth , 289 Va. 10, 12, 766 S.E.2d 906, 908 (2015). Furthermore, the entire rationale underpinning both the approbate-reprobate bar and the invited error doctrine is fairness to the opposing party and the notion that one's opponent and the courts are entitled to rely upon a legal position that a party pleads, adopts, agrees to or acquiesces in.

In my view, the analysis of the majority is seriously flawed because it rests upon a foundation underpinned by several erroneous factual and legal premises. First, the majority asserts that “[d]uring [Dufresne's] closing argument,” Dufresne made a “specific and direct request to convict her of grand larceny.” This quote from the majority opinion, is inaccurate as already noted above and ignores the context of the statement made by counsel for Dufresne—a motion to strike the evidence. The sole purpose of a motion to strike the evidence is to assert to the trial court any legal insufficiency in the Commonwealth's proof of one or more elements of the offense(s) charged. See Rule 3A:15 (“After the Commonwealth has rested its case or at the conclusion of all the evidence, the court on motion of the accused may strike the Commonwealth's evidence if the evidence is insufficient as a matter of law to sustain a conviction.”). Thus, any statements made by counsel during argument on a motion to strike the evidence must be considered in the framework of the only legitimate purpose of such a motion.

Here, the Commonwealth framed the ultimate legal issue pertinent to this appeal through the indictment it sought and received from a grand jury for the crime of robbery. The Commonwealth never requested, much less received, any amendment of its pleadings; therefore, the only legal issue before the trial court during both of Dufresne's motions to strike was the sufficiency of the Commonwealth's evidence supporting Dufresne's guilt for the crime of robbery or any lesser-included offense of that crime. In the context of the charge the Commonwealth brought against her, Dufresne's arguments during both of her motions to strike the evidence were properly focused on what evidence the Commonwealth had presented with regard to the elements of the offense charged.

The overarching argument in both of Dufresne's motions was that the Commonwealth had failed to produce sufficient evidence of the element of force, threat or intimidation to support a conviction for robbery. She never changed her plea or adopted any legal position on her own behalf except that she was not guilty of the crime the Commonwealth elected to charge her with. Here, the record is quite clear. Dufresne argued that the robbery charge should be struck because the Commonwealth's evidence was insufficient as a matter of law to support a conviction for robbery. Dufresne agreed with the trial court's suggestion that the Commonwealth's evidence was sufficient to support a prima facie case for grand larceny. This concession , regarding the Commonwealth's proof of the offense of grand larceny, has the virtue of being literally true in the abstract—the Commonwealth had, in fact, presented sufficient evidence that, if believed by a factfinder, satisfied all of the elements required for a grand larceny conviction. Of course, the technical accuracy of Dufresne's argument cannot convey any authority to the trial court to render a verdict on that offense if it is not included in the indictment, but drawing that distinction was entirely the responsibility of the trial court.

In short, I read the statement of counsel for Dufresne, relied upon by the majority as constituting an invitation to the trial court to commit error, the same way the trial court apparently did—as nothing more than repeating her earlier argument that the Commonwealth's evidence was insufficient to prove the element of force, threat or intimidation sufficient for robbery while agreeing with the proposition initially raised by the trial court that the evidence of the Commonwealth, if found to be credible, did establish the elements of an unlawful taking of personal property of sufficient value to constitute grand larceny, and thus, the Commonwealth's evidence taken in the light most favorable to it, proved no more than the crime of grand larceny. If, as also seems apparent from this record, at the time she moved to strike the evidence Dufresne's counsel was under the mistaken belief that grand larceny was a lesser-included offense of robbery, Dufresne made a clear and unequivocal attempt to correct her legal argument at a point in time when the trial court retained jurisdiction to correct any error and when no prejudice would have been suffered by the Commonwealth.

Counsel for Dufresne's statement that “I'd ask for the charge to be dropped down to grand larceny” was not a change in her not guilty plea or her basic legal position that the Commonwealth had presented insufficient evidence to legally support a conviction for robbery. Her argument, taken in context with the nature of the motion and her other statements to the trial court, was clearly a concession that the Commonwealth's evidence, if believed by the trial court as the factfinder, was sufficient to satisfy the elements of the crime of grand larceny, but not sufficient to support a prima facie case of robbery. In the absence of any evidence of bad faith, Dufresne's counsel's attempt to be candid with the trial court during argument regarding the state of the evidence, though mistaken, ought to be encouraged rather than punished , as should her attempt to later correct the mistake when it was discovered.

If arguing, however inartfully, in the context of a motion to strike the evidence that the Commonwealth's evidence failed to prove no more than a lesser-included or even an uncharged offense equates to a binding invitation to convict of the lesser or uncharged offense, then today's decision effectively converts many if not most motions to strike the evidence into the functional equivalent of guilty pleas to those lesser or uncharged offenses—without the constitutional safeguards of a colloquy that insures that the defendant knows and understands the consequences of the de facto guilty plea her attorney's argument is binding her to.

In its application of the invited error doctrine, the majority relies entirely upon our Supreme Court's holding in Sullivan v. Commonwealth , 157 Va. 867, 161 S.E. 297 (1931). Citing only Sullivan, the majority holds that the invited error doctrine applies to any assertion of, or acquiescence in, a proposed legal position while the case is in the trial court no matter the circumstances. However, their reliance is misplaced because the rationale for the holding in Sullivan is easily distinguished from the facts of this case.

Sullivan was indicted for “breaking and entering with the intent to maim, disfigure, and kill,” but the indictment was amended with Sullivan's acquiescence to breaking and entering “with intent to commit murder, rape or robbery.” Id. at 875, 161 S.E. at 299. After the trial court instructed the jury, Sullivan objected to the jury instruction because the instruction given by the trial court was “predicated upon section 4438 of the Code, while the indictment is drawn under section 4439 of the Code, and that the indictment in this case is fatally defective as an indictment under section 4438 of the Code.” Id. at 873, 161 S.E. at 298–99. After the jury returned a verdict of guilty , Sullivan “moved the [trial] court to set aside the verdict and grant him a new trial upon the ground that the same was contrary to the law and the evidence, and a misdirection of the jury.” Id. at 874, 161 S.E. at 299. The trial court overruled Sullivan's motion and entered judgment against him. Id.

Our Supreme Court noted:

The accused acquiesced in the prosecution for a breaking and entering with intent to commit murder, rape or robbery. That was the charge which he defended and about which he testified. After the evidence had been concluded he should not have been permitted to claim that he could not be prosecuted under section 4438. By this acquiescence he waived the right to make that contention because it was inconsistent with his own motion to require the prosecutor to elect under which section he should be tried. The motion, by necessary implication, conceded the right to try the accused under either section. Though the procedure was so irregular, the accused cannot be allowed to take advantage of an irregularity for which he is directly responsible. He cannot approbate and reprobate—invite error and then take advantage of his own wrong.

Id. at 878, 161 S.E. at 300 (emphasis added).

None of the circumstances that form the basis for the holding in Sullivan obtain here. In fact, the only similarity this case has with the facts in Sullivan is that the charging document, both in Sullivan and here, framed the nature of the proceedings and could be modified only by the prosecutor, with the agreement of the trial court.¹⁶ However, in Sullivan, the indictment was amended with the acquiescence of Sullivan to be tried for breaking and entering with intent to commit murder, rape or robbery, pursuant to the Code of Virginia in use at the time. The agreed upon amendment was relied upon by both the Commonwealth and the trial court, and, once amended, the amended indictment became the offense that framed a guilty or not guilty determination. Here, unlike in Sullivan, the Commonwealth never sought to amend its indictment against Dufresne from robbery, in violation of Code § 18.2–58, to grand larceny, in violation of Code § 18.2–95. Thus, there could be no acquiescence on the part of Dufresne to a legal position adopted by the Commonwealth. Even reversing the roles from Sullivan as the majority does here, the comparison with Sullivan fails because even if Dufresne's request “that the charge be dropped down to grand larceny” constituted a request that the charge be amended, the Commonwealth never acquiesced in such a request. Moreover, contrary to the case in Sullivan, Dufresne's mistaken and later abandoned argument to the trial court that the evidence presented by the Commonwealth proved no more than grand larceny as a matter of law, could not be considered an agreement to alter the offense charged and be bound thereby, thus also altering the nature of the burden of proof placed upon the Commonwealth, when the record is clear that the Commonwealth vigorously opposed the request. Without such an amendment, consistent with our Supreme Court's holding in Commonwealth v. Dalton , 259 Va. 249, 524 S.E.2d 860 (2000), a trial court is without any authority to render a verdict on an uncharged offense unless it is a lesser-included offense of one that is charged. Furthermore, and contrary to the position taken by the majority, such authority cannot be conveyed simply by concession or acquiescence.¹⁷ See Dalton , 259 Va. at 253, 524 S.E.2d at 862.

16 “An indictment is a written accusation of crime, prepared by the attorney for the Commonwealth and returned ‘a true bill’ upon the oath or affirmation of a legally impaneled grand jury.” Code § 19.2–216.

If there be any defect in form in any indictment ..., or if there shall appear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment ... at any time before the jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the nature or character of the offense charged.

Code § 19.2–231.

17 Since the trial court had subject matter and personal jurisdiction in this case, its judgment convicting Dufresne for an offense it lacked the legal authority to consider was not void ab initio but merely voidable and Dufresne properly sought to void it while the trial court still had the opportunity to do so. See Singh v. Mooney , 261 Va. 48, 51–52, 541 S.E.2d 549, 551 (2001) (“An order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court could ‘not lawfully adopt. ...’ In contrast, an order is merely voidable if it contains reversible error made by the trial court. Such orders may be set aside by motion filed in compliance with Rule 1:1 or provisions relating to the review of final orders.” (internal citations omitted)). In this case, Dufresne's motion to set aside the verdict was a proper mechanism to attempt to void the erroneous judgment of the trial court.

Additionally, Sullivan waited until his case had gone to the jury before objecting to the instruction he complained of on appeal. Thus, in Sullivan, the trial court could not correct the error without declaring a mistrial. To do so would clearly have resulted in prejudice to the Commonwealth which relied upon Sullivan's acquiescence to the amendment of the indictment. Conversely, this case was a bench trial, and prior to sentencing, while the trial court continued to exercise jurisdiction over the case, Dufresne abandoned her erroneous legal argument and filed a motion to set aside the verdict arguing that grand larceny was not a proper offense for which she could be convicted because it is not a lesser-included offense of robbery.¹⁸ According to the majority, once taken, Dufresne's mistaken argument was irrevocable and irreversible. Thus, the majority concludes that her attempt to correct the error through her motion to set aside the verdict came too late to avoid the application of the invited error doctrine.

18 Pursuant to Rule 1:1, “[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” The Commonwealth does not dispute that Dufresne's motion to set aside the verdict was timely filed.

In my view, the analysis and holding of the majority on this point brings to fruition in the Commonwealth Chief Justice Burger's concern that the invited error doctrine “has evolved in a way not contemplated” and will “exacerbate the tensions inherent in the adversary process.” United States v. Young , 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed.2d 1 (1985).

A REQUIREMENT OF PREJUDICE IN THE INVITED ERROR DOCTRINE

Even assuming Dufresne's argument regarding the sufficiency of the Commonwealth's case somehow constituted an invitation to the trial court to commit error, the trial court was the factfinder and Dufresne clearly abandoned her earlier erroneous arguments while the trial court still retained jurisdiction to alter its verdict and importantly, those earlier erroneous arguments were abandoned at a point in time when no prejudice to the Commonwealth had resulted from any erroneous arguments regarding the law.

The majority concedes that every case decided in the Commonwealth involving the invited error doctrine, including Sullivan, includes as a factor in the analysis, reliance by the opposing party upon the erroneous legal position adopted by the appellant and prejudice to the opposing party that would result from permitting an alteration in that legal position. Despite that concession, in an example of circular reasoning, the majority concludes that because none of these cases expressly requires a finding of prejudice, no such requirement exists and holds accordingly. In stretching to reach this conclusion, the majority ignores some basic legal principles.

First, prejudice to the opposing party is a required statutory consideration anytime there is a variance between the evidence presented and the allegations made and an amendment to the pleadings is sought. Code § 8.01–377.

Second, 73 years after its decision in Sullivan, our Supreme Court held that “a person who has taken an erroneous position on a question of law is ordinarily not estopped from later taking the correct position, provided his adversary has suffered no harm or prejudice by reason of the change.” Lofton Ridge, LLC v. Norfolk S. Ry. , 268 Va. 377, 382, 601 S.E.2d 648, 651 (2004).¹⁹ Finally, despite holding that no showing of reliance or prejudice is required to prohibit correction of any discovered error, the majority nevertheless speculates prejudice into existence by concluding that “the Commonwealth was prejudiced when the trial court refused to decide between petit larceny and robbery by accepting Dufresne's invitation to convict her of grand larceny.”

19 The majority asserts that my reliance on this longstanding legal principle is misplaced because it relates to the doctrine of estoppel instead of invited error. However, the doctrine of estoppel is the very foundation of the invited error doctrine. Over 100 years ago, our Supreme Court stated that a party is “estopped” because “[a] party who invites error will not be heard to complain of having misled the court.” Phillip Levy & Co. v. Davis , 115 Va. 814, 820, 80 S.E. 791, 793 (1914) (emphasis added). Moreover, as earlier noted, the concepts of the approbate-reprobate doctrine and the invited error doctrine have been conflated by different courts. Even so, in the Commonwealth there is a long-standing general rule that “[a] litigant is estopped from taking a position which is inconsistent with one previously assumed, either in the course of litigation for the same cause of action, or in dealings in pais .” Burch v. Grace St. Bldg. Corp. , 168 Va. 329, 340, 191 S.E. 672, 677 (1937) (emphasis added) (citing Chesapeake & Ohio Railway Company v. Rison , 99 Va. 18, 37 S.E. 320 (1900) ; Canada v. C. H. Beasley & Brothers , 132 Va. 166, 111 S.E. 251 (1922) ; Arwood v. Hill's Adm'r , 135 Va. 235, 117 S.E. 603 (1923) ; Alexander v. Commonwealth , 137 Va. 477, 120 S.E. 296 (1923) ; Fitchett v. Parsons , 142 Va. 163, 128 S.E. 457 (1925) ; Title, etc., Bank v. Clifton Forge National Bank , 149 Va. 168, 140 S.E. 272 (1927) ; Nagle v. Syer , 150 Va. 508, 143 S.E. 690 (1928) ; Byrd v. Pennsylvania Railroad Company , 151 Va. 954, 961, 145 S.E. 722, 724 (1928) ).

Upon that rule election is founded; a man shall not be allowed in the language of the Scotch law “to approbate and reprobate” and where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts; the election if made with knowledge of the facts is in itself binding.

Burch , 168 Va. at 340, 191 S.E. at 677.

In other words, the majority oddly concludes that the Commonwealth was apparently prejudiced by its own election to “put all of its eggs in one basket” by insisting upon a verdict on the indictment it brought and by receiving a verdict of guilty to an offense greater than the offense that its evidence would permit any court to legitimately render. Yet, contrary to the assertion of the majority that “[t]he Commonwealth was denied something it was entitled to receive—having the trial court decide whether Dufresne was guilty of robbery or petit larceny,” the Commonwealth was clearly not deprived of the opportunity to have the trial court, as the factfinder, consider both robbery and petit larceny as possible verdicts. Rather, robbery, grand larceny, and petit larceny were all clearly discussed and considered by the trial court as possible verdicts. ²⁰ The trial court simply settled upon a verdict that the evidence supported in the abstract but that the law did not permit it to render because that particular offense was uncharged. Pointedly, if the Commonwealth had in fact believed that Dufresne's argument during her motion to strike deprived it of an opportunity to see its “all or nothing strategy ... through to conclusion” as the majority asserts, the prosecutor certainly failed to say so during the hearing on the motion to set aside the verdict when the trial court still retained the option of changing its verdict in any way permitted by the law and the evidence, thus remedying any such prejudice.

20 In addition to Dufresne's motion to set aside the verdict where the trial court considered but rejected petit larceny as a possible verdict, when Dufresne began her motion to strike the Commonwealth's evidence, the trial court asked: “Is it grand larceny, grand larceny from the person, or is it robbery? Is that what you're trying to get at?” Defense counsel responded, “[t]he argument would be larceny.” Defense counsel continued arguing that the only issue in this case is whether the evidence supplied proof of the element required for robbery that the taking of the victim's property was accomplished by force, threat, or intimidation. After Dufresne argued her motion, the following colloquy occurred:

Trial Court: What are you telling me she's guilty of?

Defense Counsel: Larceny.

Trial Court: Grand larceny?

Defense Counsel: They prove value with the cash. So yes. I would say they have met the burden for grand larceny.

If the Commonwealth shared the majority's concern that it was prejudiced by a failure to have the trial court consider petit larceny as a verdict, it could have said so and joined Dufresne's motion to that effect.

Furthermore, this discovery by the majority of imaginary prejudice to, but never asserted by, the Commonwealth ignores the presumption of correctness we must accord the trial court. The trial court “is presumed to know the law and apply it correctly in each case.” Groves v. Commonwealth , 50 Va.App. 57, 62, 646 S.E.2d 28, 30 (2007). Applying that presumption here, the obvious explanation supported by this record for the trial court's statement to Dufresne that “[y]our lawyer did a fine job by getting me ... to get you out from under the robbery conviction” is simply that the trial court did not agree with the Commonwealth that the element of force, threat or intimidation required for a robbery conviction was proven beyond a reasonable doubt.

Moreover, the majority does not limit its advisory dicta to speculation concerning potential prejudice resulting from the Commonwealth's own charging decision, the majority also steps outside this Court's proper appellate role by suggesting that the trial court should have found the evidence sufficient to convict Dufresne of robbery. However, “[a]s an appellate court, ‘[w]e may not substitute our judgment for that of the trier of fact, nor may we reweigh the evidence, because we have no authority to preside de novo over a second trial.’ ” Jones v. Commonwealth , 65 Va.App. 274, 279, 777 S.E.2d 229, 231 (2015) (quoting Ervin v. Commonwealth , 57 Va.App. 495, 503, 704 S.E.2d 135, 138–39 (2011) ). In substituting its judgment for that of the factfinder by offering this improper advisory opinion, the majority not only ignores the presumption of correctness but also elects to offer advisory jurisprudence on an issue neither briefed nor before us—whether the evidence was sufficient to support a conviction for a crime a defendant was acquitted of.

Failure of proof on the Commonwealth's part hardly equates to prejudice caused by Dufresne's erroneous argument especially when the Commonwealth not only did not rely on her argument but expressly rejected it . In addition, the record clearly reflects that the trial court also expressly rejected any “invitation” to commit error by denying both motions to strike and later made a clear and unequivocal statement when it rejected Dufresne's attempt to correct the error by stating, “I have found her guilty of grand larceny, whether you consider that a lesser-included or not. That is my decision.”

By definition, a trial court abuses its discretion when it makes an error of law. Porter v. Commonwealth , 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008). “Rule 5A:18 promotes the correction of error at the trial level.” Copeland v. Commonwealth , 42 Va.App. 424, 441, 592 S.E.2d 391, 399 (2004). “The contemporaneous objection rule, embodied in Rule 5A:18 ... is based on the principle that a litigant has the responsibility to afford [the trial] court the opportunity to consider and correct a perceived error before such error is brought to the appellate court for review.” Williams v. Gloucester Sheriff's Dep't , 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003) (citation omitted). Moreover,

[f]or an objection to meet the requirements of Rule 5A:18, it must also “be made ... at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.” This requirement allows the circuit court to remedy the error while also giving “the opposing party the opportunity to meet the objection at that stage of the proceeding.”

Maxwell v. Commonwealth , 287 Va. 258, 265, 754 S.E.2d 516, 519 (2014) (quoting Scialdone v. Commonwealth , 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) ).

To be human is to be fallible. Recognizing that fallibility and furthering the goal of a fair, if imperfect trial, I conclude that the invited error doctrine should not be given the broad and draconian application adopted today by the majority to a mistaken and erroneous legal argument that was abandoned prior to any reliance thereon by, or prejudice to, the Commonwealth.

In the case at bar, Dufresne made her motion to set aside the verdict in order to give the trial court the opportunity to correct its error. In fact, during the hearing on her motion to set aside the verdict, Dufresne informed the trial court that “we are still in trial court [sic], [and a] [m]otion to set aside the verdict is to fix errors. An error was made.”²¹ The correction requested would have occurred without any prejudice to the Commonwealth since it never accepted or relied upon the earlier legal argument advanced by Dufresne. The motion to set aside the verdict put the trial court on notice that it had abused its discretion as a matter of law and offered a timely procedure to cure the problem.

21 The majority is correct that Dufresne misspoke during the motion to set aside the verdict hearing. Dufresne told the trial court that “[if] the [trial c]ourt will recall, we never made a request to have her found guilty of grand larceny. We just kept using the term larceny. ... We always just used the term larceny, which could be petit or grand.” This was not an entirely accurate recollection of what was requested during the trial. Although the assertion is accurate as to her initial motion to strike the evidence, Dufresne specifically asked the trial court “for the charge to be dropped down to grand larceny” in her renewed motion to strike.

Because this was a bench trial with the trial court acting as the factfinder, I would hold that Dufresne's motion to set aside the verdict was timely, even though it was made prior to sentencing and almost two months after the trial, because it still afforded the trial court an opportunity to consider and correct a perceived error in the verdict without prejudice. Dufresne's motion to set aside the verdict made it clear that she objected to being convicted of grand larceny, despite her earlier position that the Commonwealth's evidence suggested her guilt for that offense. Thus, prior to its final judgment, the trial court had the opportunity—in the light of Dufresne's correction regarding her understanding of the applicable law—to reconsider and change its verdict to either robbery or petit larceny, correcting its error, if it was so inclined.

Therefore, I would hold that as a matter of law, the trial court abused its discretion in failing to set aside the verdict and in convicting Dufresne of grand larceny because she had not been charged with that offense nor was it a lesser-included offense of the crime charged, robbery. In my view, the analysis and judgment of the majority will result in a zero tolerance policy. As a result, an attorney who argues infirmities in his opponent's case based upon a mistaken understanding of the law or who suggests or acquiesces in an erroneous legal position during trial, would immediately and irrevocably bind their client to the erroneous position despite any opportunity to abandon or correct it without prejudice by bringing it to the trial court's attention while corrective action can still be taken. This will occur even when, as here, the trial court lacks the legal authority to adopt the erroneous argument and when such argument is neither relevant to the ultimate issue nor relied upon by other parties or the trial court. Such a policy does not comport with the principle that a trial need only be fair, not flawless.

In responding to these concerns, the majority proposes a radical alternative approach that it insists will avoid this scenario:

The trial court, having been informed of the error, must then determine if, under the circumstances, it is appropriate to relieve the litigant of the consequences of the invited error. Whether granting such relief is appropriate necessarily will depend on the facts and circumstances of each case. Issues of potential prejudice, whether the trial court believes the error was invited intentionally, when in the proceeding, the error is brought to the trial court's attention, the amount of time that has passed between the invitation to commit error and

the withdrawal of the invitation, the degree to which subsequent proceedings in the trial court were infected by the error, and other factors may properly influence the trial court's decision of whether or not to relieve a party of the consequences of his or her invitation to commit error. In turn, we would review that decision of the trial court for an abuse of discretion.

In effect, the majority proposes that the new standard of appellate review in these cases be whether or not a trial court abused its discretion when it refused to recognize that it already abused its discretion in committing legal error. Curiously, the majority proposes this novel double abuse of discretion standard in the form of advisory dicta since it has already concluded that no showing of prejudice is ever required. Yet, the majority does not apply its advisory formula to the facts of this case. It is certainly the case that the trial court did not and the majority does not remand for the purpose of having the trial court do so.

CONCLUSION

For the foregoing reasons, I would hold that Dufresne was not procedurally barred by the invited error doctrine from raising the trial court's error in convicting her of grand larceny on appeal. Accordingly, I would reverse Dufresne's conviction of grand larceny and remand this case to the trial court for a new trial, if the Commonwealth be so advised.²²

22 Despite the result my analysis of the law compels me to reach today, I note that in light of the Supreme Court's recent decision in Commonwealth v. Bass , 292 Va. 19, 786 S.E.2d 165 (2016), double jeopardy will not preclude the Commonwealth from retrying Dufresne for grand larceny or grand larceny from the person, pursuant to Code § 18.2–95 if it elects to formally charge her with either offense. Because “[i]t is a venerable principle of double jeopardy jurisprudence that the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge[,]” the Commonwealth cannot retry Dufresne for robbery, in violation of Code § 18.2–58, as that would be the same charge. Id. at 32, 786 S.E.2d at 172. Since a charge of grand larceny is not the same charge, double jeopardy principles would not bar retrial on a charge of grand larceny.