Billy Joe Lee v. Commonwealth of Virginia, 1745152

On April 6, 2014, Billy Joe Lee returned home, argued with his fiancée Tina Toombs over a debit card, and a shotgun discharged in the bedroom, fatally wounding Toombs’ ten-year-old son, G.T.
Lee’s account: he picked up the shotgun to scare Toombs, they struggled, the butt hit the wall and the gun went off accidentally.
Toombs’ account: a struggle over a gun occurred; she backed away and then heard the gunfire, finding G.T. shot on the bedroom floor.
Lee was tried and convicted by a jury of felony homicide (Va. Code § 18.2-33), unlawful discharge of a firearm in an occupied dwelling (Va. Code § 18.2-279), and related felony firearm and child abuse offenses; convictions for first-degree murder and child endangerment had been nol-prossed earlier.
At trial Lee proffered an involuntary manslaughter instruction (theory: accidental discharge/brandishing); the trial court refused, concluding involuntary manslaughter was not a lesser-included offense of the charged crimes and noting involuntary manslaughter was not indicted.
On appeal Lee argued the trial court erred in refusing the involuntary manslaughter instruction; the Court of Appeals affirmed because Lee failed to preserve one argument and conceded the other at oral argument.

Issue	Plaintiff's Argument (Lee)	Defendant's Argument (Commonwealth)	Held
Whether trial court erred by refusing involuntary manslaughter jury instruction under Code § 18.2-279	The involuntary manslaughter instruction should have been given because § 18.2-279 contemplates involuntary manslaughter when an unlawful but nonmalicious discharge causes death	Trial court reason: instruction not appropriate; on appeal Commonwealth relies on preservation rules	Not considered on appeal — Lee did not raise this argument below, so it is forfeited (Rule 5A:18)
Whether involuntary manslaughter is a lesser-included offense of felony homicide (Va. Code § 18.2-33)	Instruction appropriate as common-law involuntary manslaughter is a lesser-included offense of felony homicide	Trial court determined involuntary manslaughter was not a lesser-included offense of the remaining charged homicide theories; Commonwealth urged proper preservation and briefing	Not decided — Lee conceded at oral argument that felony homicide has no lesser-included offenses; court accepts concession and declines to address the issue

Frango v. Commonwealth, 782 S.E.2d 175 (Va. Ct. App.) (appellate court will not consider arguments not presented to trial court)
Chappelle v. Commonwealth, 746 S.E.2d 530 (Va. Ct. App.) (purpose of preservation rule: enable trial court to correct errors and avoid unnecessary appeals)
Logan v. Commonwealth, 622 S.E.2d 771 (Va. Ct. App.) (concession of law on appeal functions as withdrawal of challenge)
Jones v. Commonwealth, 660 S.E.2d 343 (Va. Ct. App.) (appellate courts entitled to clear argument and authority; will not perform appellant’s research)
Edwards v. Commonwealth, 589 S.E.2d 444 (Va. Ct. App.) (appellate court will not invoke preservation exceptions sua sponte)