Martin v. Commonwealth
In Martin v. Commonwealth, 13 Va. App. 524, 414 S.E.2d 401 (1992), an appeal of a conviction for attempted capital murder, the Court found that, "by tendering an assault instruction, Martin fully alerted the trial judge and the Commonwealth that simple assault is a lesser-included offense of attempted capital murder," together with the attendant argument that "sufficient evidence supported granting the instruction." Id. at 530, 414 S.E.2d at 404.
The Court held that when a defendant tenders a proper lesser-included offense instruction, he or she fully alerts the trial judge and the Commonwealth of his position that sufficient evidence supports granting the instruction.
This places an affirmative duty on the trial judge to grant the instruction.
Rule 5A:18 does not further require that the defendant "object" after the refusal to grant a proper instruction in order to preserve the issue for appeal. 13 Va. App. at 530, 414 S.E.2d at 404.